An editorial from the Chicago Tribune Editorial Board:
By the usual standards of social change, popular acceptance of same-sex marriage has evolved with stunning speed. Two decades ago, only 27 percent of Americans thought it should be allowed; today, 64 percent do. It was legal in no state until 2004, but 11 years later, the Supreme Court made it the law of the land. The opponents have been routed in the federal courts and the court of public opinion.
So what’s left in serious dispute? A case before the Supreme Court on Tuesday identified a small patch of contested turf. It’s occupied by Jack Phillips, a Colorado baker who declined to produce a custom wedding cake at the request of a gay couple, citing his religious beliefs. The men sued, claiming he had discriminated against them on the basis of sexual orientation, in violation of the state’s civil rights law. The Colorado Civil Rights Commission and a Colorado court agreed.
But that conclusion is hard to square with Phillips’ willingness to sell Charlie Craig and David Mullins a pre-made cake or any other baked goods. He welcomes business from gays. He only refuses to enlist his creative talents in advancing a project — the custom cake — that would contravene his conscience. (He also declines to make cakes for Halloween, on religious grounds.)
But while a religious objection suffuses this case, so does Phillips’ objection to compelled speech — that is, being forced to express something with which he profoundly disagrees. That argument is, well, compelling.
Designing a wedding cake, his attorneys contend, is an expressive activity — and freedom of expression includes the right not to be compelled to express views one doesn’t share. In 1978, a New Hampshire motorist didn’t want to display the state’s “Live Free or Die” slogan on his license plate — and established the right to refuse. Said the Supreme Court, “The right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and to refrain from speaking at all.”
To be forced to create a cake for a same-sex wedding is a similar burden. Imagine a Jewish baker being required to put a swastika on a cake. In other contexts, the state of Colorado is more understanding: It sided with bakers who refused to provide cakes with messages disparaging same-sex marriage. So while Colorado is content to exempt some bakers from compelled speech, it wants Phillips compelled to create an opposite message.
Mullins and Craig could have easily gotten what they wanted without demanding that Phillips surrender his beliefs. There are plenty of other bakers selling wedding cakes — and we’d bet nearly all of them would be happy to design one for same-sex unions.
The lawyers for the couple claimed that allowing the bakery to refuse them would be akin to letting a business bar black customers. But race has an exceptional status in anti-discrimination law, supported by constitutional amendments. And the places once closed to blacks — restaurants, motels, bathrooms — served more urgent needs than those at stake here. Blacks traveling in the South during the Jim Crow era might be unable to find any place to attend to basic bodily functions. A lawyer for Phillips argued that if a merchant refuses service to a black person, the merchant’s objection clearly is to the person, not to expressing a message.
Gay couples in Colorado have far more options for their wedding confections. Mullins and Craig could have easily gotten what they wanted without forcing a baker to swallow his objections. There are plenty of other Colorado bakers who would be happy to design a wedding cake for a same-sex ceremony.
Phillips is in dwindling company in objecting to gay marriage. But it’s not too much to ask that he be granted the freedom not to play a part in it.