The lyrics from an old song keep running through my head. “If I knew you were coming, I’d have baked a cake, baked a cake…”
Unless you’re gay, of course.
Today, the Supreme Court will hear oral arguments in a case that will determine which version of that song we’ll sing.
Masterpiece Cakeshop insists that its cakes are “art,” and that the Constitution protects the refusal of the “artist”–aka the guy who bakes the cakes– to bake them for LGBTQ folks. According to the baker, forcing him to sell his “art” to anyone with the money to purchase it compels him to express approval of something his religion condemns–in this case, same-sex marriage.
Those of us who are old enough to remember when “sincere” religious belief was the argument advanced by retailers refusing service to African-Americans tend to frame the issue differently: Does either clause of the First Amendment operate to exempt people from complying with laws of “general application”?
The word “theocrat” gets thrown around a lot these days, and for perfectly understandable reasons, but the question the Court will address is the inverse of what we usually mean when we use that term. Theocracy implies the imposition of one group’s religious beliefs on the nation as a whole through law–using the power of the state to enforce conformity with the religious precepts of a dominant sect.
Here, the question is whether and when respect for an individual’s (presumably sincere) religious belief should exempt that individual from compliance with rules that everyone else must follow. Under what conditions–if ever– should the law allow such exemptions? During prohibition, I’m pretty sure that most Americans–even ardent prohibitionists– would distinguish between Catholics sipping wine during Mass and party-goers imbibing bathtub gin. When the Supreme Court decided the Smith case, ruling that the use of peyote in an Indian religious ceremony was a violation of state drug laws (laws of “general application”) the resulting uproar was a sign that most people considered the decision to be an overly-zealous application of the principle.
When someone is asking to be exempted from a law that wasn’t originally intended to constrain their particular behavior, it may or may not be appropriate to grant the request. When someone wants to be excused from complying with a law that was expressly intended to protect other people from harm or discrimination, however, the calculus changes.
My religion might teach me that I have an obligation to sacrifice my first-born; my entirely sincere belief that I should do so will not exempt me from a law against infanticide. I might sincerely believe that my particular God has no problem with my stealing from people who don’t share my religious beliefs, but that sincere belief won’t keep me out of jail.
In short, my “religious liberty” defense fails when I invoke it to excuse noncompliance with laws protecting others. Neither my right to “artistic expression/free speech” nor my liberty to believe in a religion of my choice gives me permission to mistreat or disadvantage others. As my friend Steve Sanders pointed out in a wonderful op-ed for the New York Times on Sunday, anti-discrimination laws regulate conduct, not expression. As he wrote, “if our baker/artist decided that he could not be true to his muse without the use of banned coloring agents, would the food safety laws have to yield? Of course not.”
It’s worth noting that the foregoing analysis generously assumes a sincere belief on the part of the objecting merchant, although it’s glaringly obvious that most people claiming religious or “artistic” exemptions are simply attempting to justify personal bigotries. Evidence of their lack of integrity makes the analysis easier, but it’s important to note that it doesn’t change the result–the claim fails either way.
If he’d known you were coming, gay couple, Masterpiece Cakeshop should still have to bake you a cake…