As you probably know, Masterpiece Cakeshop refused to afford its services for a same-sex wedding reception in Colorado on religious grounds, was found liable for its discrimination, and the case is before the Supreme Court.
A number of things bother me about cases like these. First, I am troubled by the secular left’s hostility to religious claims. Freedom of religion was fine when the freedom of religion rights of Quakers or Native Americans were at issue. Indeed, secular liberals favored the Religious Freedom Restoration Act after the Court undermined freedom of religion claims. Today, the secular liberals are hostile to the Act at the federal level and oppose new such acts at the state level.
Today the religious claimants are evangelical Christians for whom secular liberals have special contempt. Could that have something to do with it? I too have little regard for the views of evangelical Christians; nonetheless, their religious liberty deserves to be respected even though that liberty can be outweighed by more important government interests. What concerns me is the failure of secular liberals to recognize that if anti-discrimination interests are enforced in a way that compels a religious claimant to act against his or her will, the choice is tragic because two important interests cannot be reconciled.
I am also bothered by the religious right in the wedding cake controversy. To get to this point, I need to make some general observations about the case. In the case before the Court, the baker was approached by a same sex couple to purchase a cake for their wedding reception. The baker refused to provide any baked goods for the reception on the ground that he is religiously opposed to same-sex weddings, but observed that he would design, bake, and sell baked goods to gays for other occasions. There was no discussion as to what kind of cake the couple wanted.
Despite the absence of discussion, the baker said his free speech rights were violated. Clearly, baked goods are not speech. The baker, however, ignoring the record showing that his refusal was to provide any baked good, claims he has a free speech right to refuse to provide a custom cake and that he is an artist. His bakery, he says, is an “art gallery of cakes.” He claims to be an “artist using cake as his canvas.” It, however, would be the rare baker who does not provide a design on his or her cakes. Any baker could claim to be an artist. Are all custom cakes or cakes with designs to be categorized as speech for purposes for the First Amendment? The courts are not art critics. It makes little sense to suppose that courts will decide that some bakers are artists and others are not. So it is all or none. If wedding cakes are speech because of the artistry, then what do we make of the artistic claims of florists, interior decorators, chefs, and jewelers. This is just a glimpse of the problems with the record and the claims of the bakery.
Now to the religious right. I understand why the religious right raises a freedom of religion argument even though the Court has thrown up doctrinal roadblocks to the success of those arguments. What concerns me is the uniformity with which they favor the free speech argument in this case. I would have expected that some of them would have said that the issue here is whether freedom of religion outweighs the anti-discrimination interest instead of dressing up a freedom of religion argument as a free speech argument.