“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
That, of course, is the text of the First Amendment to the United States Constitution.
It is, in my opinion, the most important of all amendments in the Bill of Rights. I realize that I’m not exactly breaking any kind of intellectual ground by suggesting as much, but I think it remains true.
This week, the question of the scope of the First Amendment, and specifically two aspects of it — the free exercise of religion and our freedom of association — were thrust upon us due to a Supreme Court decision in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case.
At issue? Whether Jack Phillips, a Christian baker who has a clear religious conviction against homosexuality, has the right to refuse to decorate a cake for a gay couple. Is he to be forced to use his artistic expression to create a message that he has core, deeply held convictions against?
Unfortunately, for all the conversations we are having about the decision now, nothing was ultimately solved. While conservatives are calling the decision a victory, the reality is that it is a “remarkably narrow” opinion from the court. It did not ultimately decide the big question in the case but instead ruled in the baker’s favor because of what amounted to a process complaint.
Ultimately, the court decided that the Colorado Civil Rights Commission’s pursuit of Phillips was religiously motivated, and due to this, violated his First Amendment rights.
In other words, the Supreme Court said that their decision would not apply to any kind of future controversy involving the exact same facts, provided the commission acted less like a reverse-Inquisition.
Indeed, this is why the decision was ultimately 7-2, with two liberal justices joining Justice Anthony Kennedy and the conservatives. The decision didn’t have any real stakes, and were you to have polled the justices about individual sentences in the opinion, you likely would have gotten 5-4 votes on individual sentiments.
But they can only delay so long, because there are several more of these cases making their way through the appellate system, a fact Kennedy himself admitted.
So what’s the right decision?
Anyone who claims it is an easy concept to tangle with and arrive at a fair solution is either lying to you, or hopelessly partisan.
Do you think the baker should have been allowed to refuse service to a gay couple?Alright, opponents say, what about a restaurant that refuses to serve an African American patron? Does not the same logic apply, and if so, does that not highlight the problem with allowing people to refuse service to people they do not wish to serve?
And for those smugly dismissing the rights of the baker to refuse to allow his artistic craftsmanship to be used for something that violates his personal moral and religious code, equally troubling examples should make you reconsider. Should a Jewish baker be forced to create an anti-Semitic cake for a neo-Nazi? Should an all-black fraternity be forced to admit white students?
Then you get into “protected classes” of citizens, which allow (basically) the rules for freedom of speech, free association and freedom of religion to be basically disregarded, if the targets are citizens who happen to have certain characteristics.
These are not easy issues to work through.
So what’s the right answer?
I don’t want to live in a world where the state judges any citizen as having the “right” to the labor or craftsmanship of another, without their reciprocal interest.
I do want to live in a world where Phillips is free to refuse to design a message on his cake that violates his religion convictions.
I want to live in a world where Charlie Craig and Dave Mullins — the gay couple in this case — can then proceed to another bakery, which is all too happy to take on the business that Phillips refused, and to create a wonderful cake that celebrates their union.
I want to live in a world where the market implications of those two business decisions then reward and punish the various actors involved.
And truthfully, in the world and environment of 2018, I think society is at a place where it can rationally exist in this way. Phillips can be left to honor his convictions, while not ultimately threatening the institution of gay marriage, or the ability of any couple to purchase a cake to celebrate their relationship.