The Case for the Baker in the Gay-Wedding Culture War
By Andrew Sullivan
If someone had asked me back in the day, if, in 2017, we’d be having a discussion about whether a fundamentalist baker should be forced by the law to create a wedding cake for a gay couple, I’d have been gobsmacked, as the Brits say. Smacked in the gob because only a decade ago such a question would have seemed so remotely hypothetical as to be absurd. And yet, here we are. A Christian baker has taken a stand on the grounds of religious conscience and artistic freedom not to provide a cake specifically designed for a legal, constitutional same-sex wedding. His case was just argued in the Supreme Court no less. The staggering victories of the marriage-equality movement (now, Australia!) have led us here — far sooner than most of us pioneers ever contemplated. And the speed and finality of this social change has — understandably — frightened, disturbed, and alienated many on the other side. They are still smarting from the sting of defeat, defensibly regrouping and obsessing over their victimhood.
Which is why I think it was a prudential mistake to sue the baker. Live and let live would have been a far better response. The baker’s religious convictions are not trivial or obviously in bad faith, which means to say he is not just suddenly citing them solely when it comes to catering to gays. His fundamentalism makes him refuse to make even Halloween cakes, for Pete’s sake. More to the point, he has said he would provide any form of custom-designed cakes for gay couples — a birthday cake, for example — except for one designed for a specific celebration that he has religious objections to. And those religious convictions cannot be dismissed as arbitrary (even if you find them absurd). Opposition to same-sex marriage has been an uncontested pillar of every major world religion for aeons.
And so, if there are alternative solutions, like finding another baker, why force the point? Why take up arms to coerce someone when you can easily let him be — and still celebrate your wedding? That is particularly the case when much of the argument for marriage equality was that it would not force anyone outside that marriage to approve or disapprove of it. One reason we won that debate is because many straight people simply said to themselves, “How does someone else’s marriage affect me?” and decided on those grounds to support or acquiesce to such a deep social change. It seems grotesquely disingenuous now for the marriage-equality movement to bait and switch on that core “live and let live” argument. And it seems deeply insensitive and intolerant to force the clear losers in a culture war into not just defeat but personal humiliation.
Nonetheless, here we are. And it is a hard case constitutionally. It pits religious and artistic freedom against civil equality and nondiscrimination. Anyone on either side who claims this is an easy call are fanatics of one kind or other. I’m deeply conflicted. I worry that a decision that endorses religious freedom could effectively nullify a large swathe of antidiscrimination legislation — and have a feeling that Scalia, for example, would have backed the gays in this case on those grounds alone. Equally, I worry that a ruling that backs the right of the state to coerce someone into doing something that violates their religious conscience will also have terrible consequences. A law that controls an individual’s conscience violates a core liberal idea. It smacks of authoritarianism and of a contempt for religious faith. It feels downright anti-American to me.
The smartest and most nuanced take I’ve read on the subject is that of philosopher John Corvino. He argues that there is indeed a core right not to be forced to create something against your conscience but that in this particular case, the act of creation is so deeply entwined with hostility to an entire class of people that antidiscrimination laws overrule it. It’s worth reading, but he still doesn’t quite convince me. The baker is clearly not discriminating against an entire class of people; he is refusing to endorse a particular activity that violates his faith. Kennedy was absolutely right in oral arguments to make a distinction between an identity and an activity. The conflation of the two is just too facile.
And there’s a way out of this that need not take such a strong stand in terms of religious freedom. It seems to me the baker deserves to be able to pick and choose what kind of work he wants to do as an artist. A commenter on Rod Dreher’s blog proffers a series of important questions in this respect:
“If the cake shop loses, does that mean that if I’m, say, a freelance designer or an artist or a writer or a photographer, I can no longer pick and choose my clients? If the Westboro Baptist Church comes to me, I can’t reject them on the grounds that they’re deeply un-Christian scumbags? If I’m Jewish, do I have to design a Hitler’s Birthday cake with swastikas on it? Would a Muslim cake-shop owner be forced to design a cake that shows an Islamic terrorist with crosshairs over his face, a common target design in most gun shops in America? Can a gay, atheist web designer choose not to do work for the Catholic Church, or would we have the government compel him to take on a client he loathes?”
It always worries me when gays advocate taking freedom away from other people. It worries me as a matter of principle. But it also unsettles me because some gay activists do not seem to realize that the position they’re taking is particularly dangerous for a tiny and historically despised minority. The blithe unconcern for the First Amendment in the war on “hate speech,” for example, ignores the fact that, for centuries, the First Amendment was the only defense the gay minority ever had — and now, with the first taste of power, we are restricting the rights of others in this respect? Ugh. Endorse the state’s right to coerce speech or conscience and you have ceded a principle that can so easily come back to haunt you. The freedom of any baker to express himself is, in this respect, indistinguishable from that of any gay person to do so — a truth that our current tribalism blinds so many to. I hope, in other words, that the baker prevails — but that the Supreme Court decision doesn’t turn on religious so much as artistic freedom.
One final thought as a Christian. Sealing yourself off from those you consider sinners is, in my reading of the Gospels, the reverse of what Jesus taught. It was precisely this tendency of the religious to place themselves above others, to create clear boundaries to avoid “contamination” from “evildoers” that Jesus uniquely violated and profoundly opposed. If Jesus is your guide, why is this kind of boundary observance such an important part of your faith? Are you afraid your own faith will be weakened by decorating a cake? Would you have ever had dinner with prostitutes or imperial tax collectors as Jesus famously did? What is this Christianity you are so dedicated to? Somewhere, the fundamental Christian imperative to love others and be humble before them has been lost.
In other words, if the liberals were more liberal, and the Christians more Christian, this case would never have existed. It tells you a great deal about the decadence of our culture that it does.
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