We’re lawyers who support same-sex marriage. We also support the Masterpiece Cakeshop baker.

Thomas C. Berg · Wednesday, December 06, 2017, 11:38 am

Same-sex marriage and religious liberty can coexist.

The Supreme Court heard argument yesterday in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The issue is whether a conservative Christian baker who believes that weddings are inherently religious and that same-sex marriages are religiously prohibited can be required to design and create a cake to celebrate the wedding of a same-sex couple.

The case tests the nation’s commitment to liberty and justice for all. And we aren’t doing well on the part about “for all.” Too many Americans, left and right, religious and secular, want liberty for their own side in the culture wars, but not for the other side.

The Supreme Court sometimes succumbs to these cultural divisions, but perhaps this time it will do better. In Obergefell v. Hodges, announcing the constitutional right to same-sex marriage, Justice Anthony Kennedy and the four liberals opened their opinion by declaring, “The Constitution promises liberty to all within its reach,” a liberty that allows persons “to define and express their identity.”

Masterpiece Cakeshop tests whether they meant it. Conservative believers are also within the Constitution’s reach. Does the Constitution protect their right to define and express their identity in religious terms equally with the right of same-sex couples to define and express their identity in sexual terms? It should.

The two of us, in briefs and articles, have long urged judges, legislators, and our fellow citizens to protect the right of same-sex couples to marry and also protect the right of religious dissenters not to assist with those marriages. That does not mean undercutting nondiscrimination laws in most cases of commercial goods and services. The Court can recognize a carefully defined right in the case of Jack Phillips, the owner of Masterpiece Cakeshop, and make room for both sides in the culture wars.

This is a unique event: a wedding. That makes a difference.

The wedding baker’s job, like that of the caterer, florist, photographer, and bridal shop, is to make his part of the wedding the best and most memorable it can be. He is promoting the wedding and the marriage it celebrates. Phillips, the owner of Masterpiece Cakeshop, says he cannot do that. Many bakers may feel that their responsibility ends when they deliver the cake. But Phillips feels morally responsible for what he creates and helps to celebrate.

The result is that Phillips no longer makes wedding cakes for anybody. He has surrendered 40 percent of his business and laid off half his employees. Unless the Supreme Court intervenes, this is a permanent loss of occupation. His alternative was to permanently surrender his conscience.

And to what end? To avoid the one-time offense to the same-sex couple of being turned away and being reminded of what they knew anyway: that some Americans still disapprove of their relationship. Their right to be married and to a wedding cake were never at issue. Many bakers were eager for their business, and when the story broke, the couple promptly accepted an offer of a free wedding cake.

Same-sex couples and religious dissenters make parallel claims to liberty. They each argue that a core aspect of their identity is so fundamental that it should be left to each individual, free of all nonessential regulation. Their conduct cannot be separated from their sexual orientation or their religious beliefs. Believers can no more fail to act on their understanding of God's will than all gays and lesbians can remain celibate.

They each seek to live out their identities in public as well as in private. Same-sex couples are entitled to free access to the marketplace, but so are religious dissenters. The question is how to maximize access for both sides without requiring either to surrender core elements of their identity.

Finally, both religious dissenters and same-sex couples are condemned by many other Americans. One side sees bigotry; the other side sees sin. Blue states refuse to protect religious liberty; red states refuse to enact gay-rights laws.

Most of the commentary on the case has focused on Phillips’s free speech claim. But the Court can decide the case on narrower grounds under the Free Exercise Clause, as we urged in a friend-of-the-court brief.

The free exercise claim is inherently limited to sincere religious objectors. And, in this case, it is largely limited to weddings, a context that Phillips and many other believers understand as religious. Phillips claims no right to refuse service to gays and lesbians more generally. Any merchant who did so would have a losing case. For if merchants could discriminate anywhere and in any context, the obstacle to LGBTQ participation in the marketplace would be much greater, and the government’s interest in protecting them would be much greater. There may be religious conservatives who argue for that; Phillips and his responsible supporters do not.

Of course Phillips’s opponents exaggerate his claim as much as possible. They strain to analogize his case to Jim Crow restaurants turning away blacks, or a fundamentalist-owned bank refusing to handle women’s accounts. Courts would properly reject such ongoing denials of service — and they did in the Jim Crow era. This case involves a wedding, an event that we all hope to be the center of only once, and even if things go badly, no more than a very few times. This is not the same as a restaurant or bank — it’s a rare occasion.

Secular versus religious exceptions are unevenly enforced

The free exercise claim has been neglected because too many people have read too much into the Supreme Court’s 1990 decision in Employment Division v. Smith. The Court said that the Free Exercise Clause does not apply to laws that are “neutral and generally applicable.” So Oregon could apply its “across-the-board criminal prohibition” to ban Native Americans from using peyote as their sacrament in worship services.

Read more
https://www.vox.com/the-big-idea/2017/12/6/16741602/masterpiece-cakeshop-same-sex-wedding