The baker and the cause of freedom: same sex marriage revisited

Anticipating the upcoming argument before the Supreme Court in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, which took place this past week, the New York Times editorial page recently weighed in, calling on the Court to rule against the baker who declined a request to make a custom baked cake for a same sex wedding. It will surprise no one that given a choice between a gay couple seeking to compel public affirmation of their marriage and a Christian vendor whose religious conscience does not permit such affirmation, the Times editors side with the former.  To the best of my knowledge, our self-styled newspaper of record has never met a religious scruple it can respect.  What I do find surprising is the number of sincerely religious people who seem unable to recognize the dangerous extent to which this case may further the erosion of religious freedom in this country.

The Times editorial position is straightforward.  Although the editors concede that the baker “makes a good case that he is an artist,” that status “doesn’t give [him] the right to refuse service to people protected under an anti-discrimination law.”  The editorial acknowledges that the baker “is happy to sell any of his pre-made products to gay people … or to bake them a custom cake for another occasion,” and refuses only to “custom-bake anything intended for use in a same-sex wedding.”   The Times casually dismisses that policy as “a distinction without a difference.”  Obviously eager to support the “equality and human dignity” that they claim are stake, the Times editors actually resort to a slippery slope argument: “what about photographers? Florists? Caterers? Calligraphers?”  Well, what about them?

The most outrageous statement in the Times editorial is the accusation that the Colorado baker is part of a “rearguard action undertaken by religious objectors thwarted in their efforts to prevent gay couples from enjoying the rights and benefits that flow from marriage.”  Excuse me, but who sued whom?  I doubt that this baker was eager to become entangled in the administrative machinery of the Colorado Human Rights Commission.  All he wanted was to be left alone and not be forced to participate in or implicitly endorse an activity that his religious community believes to be sinful.  It was the gay couple who, instead of simply finding another baker who did not share this one’s religious objections or purchasing a pre-made product from this baker, chose to bring the force of the state to bear against his disapproval.

Indeed, much of the opposition to same sex marriage came from a fear of precisely this kind of ideological bait-and-switch.  Before the Supreme Court forced same sex marriage on the states,  proponents argued for it from a live-and-let-live perspective.  How would heterosexuals be harmed, they asked rhetorically, by allowing gay couples the same  marriage rights as straight couples?  Now that that battle has been won, the answer to that question has become clear as the broader agenda of same sex marriage supporters has come into view.  It’s not enough for the state to be neutral,  allowing those on each side of the issue to live according to their own principles; it has to force everyone to affirmatively endorse  the perspective of the same sex marriage advocates, religious scruples be damned.

The Times editorial rightly asserts that the case is likely to be decided on freedom of expression rather than free exercise of religion grounds, which is why the baker has emphasized his status as an artist.  That’s because, over the course of the last quarter century, the Court has so far eroded the constitutional protections for free exercise of religion that it would take a major course correction to recover the status quo as it existed before the Supreme Court’s 1990 decision in Employment Division v. Smith.  In that case, the Court upheld the State’s denial of unemployment benefits to a man fired for using peyote in a religious ceremony.  The Court’s holding on the facts of that case was not particularly controversial — it had been widely expected that the Court would rule that there was a compelling  state interest in preventing the use of peyote — but the Court’s decision, written by Justice Scalia went much further, holding that: The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).

(I have never understood why so many religious conservatives idolized the late Justice Scalia, given his authorship of the decision that did more to undermine religious freedom than any other for more than a century.)

Though it did not expressly overrule any prior decision, the Smith ruling effectively upended more than two decades of precedent, beginning with the Court’s 1963 decision in Sherbert v. Verrner, in which it held that a state could not deny unemployment compensation to an individual who refused a job requiring him to work on Saturday.  ln the years between Sherbert and Smith, the Court had applied to religious freedom cases the same standard it applies to cases involving other constitutional freedoms: that a State can only infringe on an individual’s constitutional rights if it shows a compelling state interest in doing so.  It’s pretty clear that if the pre-Smith standard were in effect, the State of Colorado would be hard put to prevail against the wedding cake baker.  Among the panoply of compelling state interests, it’s hard to imagine the right of every couple to employ the wedding cake baker of their choice ranking very high.

For religious minorities whose practices are out of the mainstream, the Smith standard amounts to an invitation to block or restrict any religious practices that the majority finds odd.  Religious Jews should not be complacent in this respect.  Shechita (ritual slaughter) and brit milah (infant circumcision), which are fundamental components of traditional Judaism, are already under attack in Europe, and there are small but determined groups in America who would love to outlaw them here.  At the moment, American Jews are strong enough politically to resist any such attempts.  If recent experience has taught us anything, however, it is surely that the winds of public opinion can shift quickly and in unexpected directions. The whole point of judicially protected constitutional rights is to protect powerless minorities from the fickle winds of shifting popular opinion.

The optimal result for this case, which will probably be decided in June, would be for the Supreme Court to use the opportunity to overrule — or at least limit the reach of — Smith and its progeny.  Given the current composition of the Court, however, such a result seems highly unlikely.  Upholding the baker’s rights on free expression grounds wouldn’t do much to advance the cause of religious freedom, but at least it would not contribute to its further erosion.  Sometimes that’s the best we can hope for.