Poor Antonin Scalia. He missed the dessert course of gay rights cases at the Supreme Court this week. Only his untimely death could have kept this corpulent originalist from an oral argument banquet he knew was coming long before he died. The question before the Supremes? Can an anti-gay-marriage baker refuse to make a wedding cake for two grooms?
Nobody could have anticipated a wedding cake dialectic back in 1986. That was when the Court decided Bowers v. Hardwick, a ruling that upheld state sodomy statutes criminalizing sexual relations between same-sex partners. The majority held that the Constitution confers no protections on gays and lesbians.
Seventeen years later, however, the Court embarked on what Scalia considered a slippery slope “to end all morals.” In 2003, the Court reversed its earlier decision and, in Lawrence v. Texas, said laws effectively banning gay sex were unconstitutional. Although none of the litigators in that case were even remotely thinking about gay marriage back then, Scalia was several chess moves ahead. In a sharply crafted dissent, he prophetically predicted that it was only a matter of time before the Court would be fighting over gay wedding cakes.
If “homosexual conduct” is no longer proscribed, Scalia posited in his dissent, “what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising the liberty protected by the Constitution?” Those words, although composed in a font of deep sarcasm, later served as the plaintiffs’ road map in legal battles that brought down the Defense of Marriage Act in 2013 and, finally, in 2015, established the constitutional right to marry for gay and lesbian couples.
Scalia didn’t know whether it would be a butcher, a baker or a candlestick maker, but he was pretty certain that this “slippery slope” of gay rights would one day end up with a hoot and a holler from somewhere in the vast matrimonial industrial complex. Stepping up to prove him right was Colorado baker Jack Phillips. The betrothed couple, David Mullins and Charlie Craig, went to Phillips’ Masterpiece Cakeshop to order a cake for their wedding. The baker told them he was personally opposed to gay marriage and, for that reason, would not bake them a wedding cake.
Mullins and Craig argue that Phillips’ refusal to do business with them violated Colorado’s law prohibiting discrimination on the basis of sexual orientation. The Colorado Civil Rights Commission agreed, and found Phillips in violation of the statute. The issue before the Supreme Court this week was over whether the baker’s free speech rights were violated. Phillips argued that the act of making a cake for a gay wedding was, in effect, forced speech in support of the marriage.
Don’t let the relative frivolity of a wedding cake fool you. There’s a lot more than dessert riding on this case. If the baker gets a judicial pass to discriminate against lesbians and gays, a long line of other vendors are likely to emerge: dress makers, florists, photographers, caterers, venue owners. And that’s just in the context of weddings. In Colorado and at least 21 other states, it is against the law to discriminate in hiring on the basis of sexual orientation. If the baker wins this case, it’s not a stretch to imagine homophobic employers passing over LGBT applicants based on “free speech” rights.
The history of civil rights legislation is replete with demands for exceptions to discrimination bans, but those adopted have been narrowly and specifically defined in the statute. For example, a religious institution may limit hiring to practitioners of that religion. The “free speech” exemption is a dishonest and absurdist escape from the very intent of nondiscrimination laws. Using the Colorado baker’s argument, a racist landlord could refuse to rent an apartment to blacks on the basis that to do so would be “forced speech”, namely that he approves of black people.
In the real world, selling a cake for a gay wedding, or renting an apartment to a black family, endorses neither the marriage nor the tenants. It simply follows the law. In the public marketplace, a seller’s wares must be dispensed in accordance with applicable nondiscrimination laws. Granting a pass for discrimination based on the discriminator’s personal belief could well set off the slipperiest slope of them all. All discrimination emanates from personal belief. That’s why the laws were adopted in the first place. You can believe someone is inferior because of who they are, you just can’t penalize them for it when doing business with them.
The notion that Jack Phillips, by making a wedding cake, would be forced into advocating for the marriage of his two would-be male customers is total nonsense. He’s not making a toast, throwing rice or even going to the wedding. He’s not blessing the happy couple. He’s just baking a cake. As Justice Sonia Sotomayor said, “When have we ever given protection to food?” Unfortunately, this Court appears sharply divided on the issue. The crucial vote will likely be that of Justice Anthony Kennedy who kept everyone guessing this week by offering critical comments to both sides.
The only safe bet right now is that in some afterlife or another, Antonin Scalia is chuckling to himself. He was, after all, right about one thing: When you give basic human rights to the oppressed, those who benefit from the oppression will fight to maintain their ways. It’s time to serve up the just desserts (with Justice Scalia’s posthumous dissent duly noted): Let them eat cake.