Just in case you need a refresher: Back in 2012, a baker in the Denver suburb of Lakewood was asked by a gay couple to make them a wedding cake—two years before gay marriage was even legalized in Colorado. The owner of Masterpiece Cakeshop, Jack Phillips, declined to participate in Charlie Craig and David Mullins’ celebration, because such an event conflicted with his Christian faith.
Here are a few things Phillips didn’t do: He didn’t query consumers about their sexual preferences. He didn’t bar same-sex couples from purchasing a cake at a place of public accommodation. He didn’t ask consumers traveling in same-sex pairs to leave his shop. He didn’t hang a ‘No Gays Allowed’ sign in his window.
What he could never have known when he first opened his shop was that celebrating gay marriages would be a precondition for making a living. And when you consider that there are at least a few dozen other bakeries within a short drive from Masterpiece Cakeshop that could have accommodated the couple’s celebratory pastry needs, why would he?
Yet instead of exhibiting a basic level of tolerance (or dignity), two priggish bullies decided to call the authorities when Phillips refused to bake them a cake. And the cultural commissars at Colorado’s Civil Rights Commission soon ruled that he had discriminated against the couple.
The shop was not only ordered to alter store policy and start baking cakes for gay weddings–or else face debilitating fines, a consequence often reported on by the media–but it was also forced to provide comprehensive staff training, ensure compliance, and then file quarterly obedience reports with the government for two full years. In these reports, Phillips had to describe exactly which remedial measures the shop had taken to conform, and document the reasons why any other patrons were denied service.
So, you know, I’m sure this is exactly how Jefferson imagined America would turn out when he was writing the Declaration of Independence.
Phillips appealed the decision and just this week, a three-panel Colorado Court of Appeals unanimously decided that Masterpiece Cake Shop’s policy against creating wedding cakes for same-sex couples was a “discriminatory and unfair practice,” further ruling that the shop must continue to answer to the Civil Rights Commission, or else be run out of business.
Incredibly, the court acknowledged in its decision that it would have looked at the First Amendment arguments more closely had the gay couple ordered a cake with some explicit messaging that advocated for gay marriage. In other words, the Colorado Court of Appeals believes the threshold for denying religious liberty is the presence of advocacy. The court has effectively tasked itself with determining for you when religion should matter.
If nothing else, it’s comforting to know that Colorado can force an orthodox Islamic butcher to make sausages for a polyamorous bisexual bachelor/bachelorette party, so long as no one asks the butcher to outwardly promote swine and free love.
Not only does the court now apparently hold the power to bore into the souls of shopkeeps to establish that their religious objections aren’t authentic, but it can also decide when their prejudice is. It makes the risible assertion that any theological problem with gay marriage is really just “opposition” to the existence of gay Americans—whatever that means:
Specifically, Masterpiece asserts that its refusal to create the cake was “because of” its opposition to same-sex marriage, not because of its opposition to their sexual orientation. We conclude that the act of same-sex marriage is closely correlated to Craig’s and Mullins’ sexual orientation, and therefore, the ALJ did not err when he found that Masterpiece’s refusal to create a wedding cake for Craig and Mullins was “because of” their sexual orientation, in violation of CADA.
A person may have gay friends and relatives–they may even love their fellow gay Americans–but if they decline to participate in a same-sex wedding for theological reasons, the court wants us to assume they could only be motivated by bigotry.
In any event, I’m sure there will be an appeal. But since most Americans are fine with gay marriage and simultaneously put off by unpleasant (and in this case, deceptive) words like “discrimination” and “prejudice,” the courts–nearly always driven by the vagaries of public opinion–will find a way to force all to comply. This will go for any other businesses even tangentially related to weddings, such as food catering, music, and so on. And the crusade will accelerate until the legal lynch mob gets to religious institutions. No doubt advocates will work backwards to come up with a great legal rationalization for all of it.
All of this is not to say that in American life, the minority should never be compelled to surrender to some form of majoritarianism, judicial force, or government. In this case, though, the minority does not have the ability to compromise without abandoning its faith. The other side refuses to compromise precisely because of this reality. And courts and commissions around the country are willing to destroy businesses—businesses that sometimes took a large part of a lifetime to build—by ignoring one of the most vital functions of the First Amendment.
The position of these businesspeople, unlike Southern racists decades ago, in no way undermines the newfound right of gay Americans to marry, nor does it inhibit them from enjoying freedom or finding happiness. In this case, only one side is attempting to legislate morality.
If you admit—and many rational people do, even those who quarrel with the reasoning behind religious obstinacy—that millions of Christians hold some form of a genuine, long-standing religious conviction that prohibits them from celebrating gay marriages, but you still support state coercion against them, then you might as well just concede that religious freedom isn’t compatible with your conception of a contemporary society.
Whereas at one time the state wouldn’t substantially burden religious exercise and would use the least restrictive means to further “compelling interests,” the state today is inclined to substantially burden a Christian by the mere fact that someone’s feelings are hurt.
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