“The Colorado Wedding Cake Case: A Gay Couple Versus A Principled Baker” (WGBH), by Harvey Silverglate:
The Supreme Court soon will issue its opinion in one of the most contentious, but least understood cases on that court’s docket, the clash between gay rights advocates on the one hand, and a merchant’s claim that his religious conscience forbids him from selling to a gay couple the same services and product (a custom-made wedding cake) that he readily provides to straight couples.
The legal analysis is sort of interesting. In a country that is ever more packed with people, do we want to allow someone to get off and stay off the reservation when the standards for correct thought change?
What continues to baffle me about this case and similar is why there are people who consider civil marriage to be a sacred institution from which same-sex couples, threesomes, or person-cat unions should be excluded. “America, Home of the Transactional Marriage” (Atlantic) says that Americans marry based on cash incentives. Colorado family law, which covers the baker’s region, provides for on-demand unilateral (“no-fault”) divorce. Maybe it would be logically reasonable (albeit morally deplorable) for the baker to object to a same-sex religious marriage in his church. But if a civil marriage is primarily about giving one partner the right to sue the other, possibly as soon as the day after the wedding, why did the baker get his panties in a twist? (and keep them twisted all the way to the U.S. Supreme Court!)
From one of my smart friends (who happens to be gay):
First, an observation: whatever legal and ethical principle applies to gay weddings also applies to, say, interracial or Jewish weddings, if particular vendors have religious or philosophical objections to those.
I strongly support free speech even for views I consider despicable. And free speech has to include not only being able to express one’s views, but also not being forced to express view one disagrees with.
However, merely having to provide services to someone (when those services are offered to the public) does not reasonably constitute having to express any particular view, whether the services are in the form of a cake, or other food, or renting out a hall or chairs, or whatever. If it did, why draw the line at the wedding itself? Why not permit refusing certain couples when they try to rent apartments or hotel rooms, or be served dinner together at a restaurant, etc.?
If the baker had been asked to create artwork on the cake that explicitly championed a form of marriage he disapproved of, there would at least start to be a legitimate competing interest (though the artistic contribution would be so minimal that I’m still skeptical that consideration should prevail, particularly since the baker’s own views would not plausibly be inferred by anyone from his providing that service, at least no more than if he had merely provided bagels for the wedding).
And in the case at hand, my understanding is that the baker turned the customers away before even discussing what the cake would look like. If it was just to be a generic wedding cake, then denying it to a gay (or interracial or Jewish) couple would be no different than refusing to sell them beer or napkins for the wedding, no different from refusing to rent them an apartment or serve them together at a restaurant.
I followed up with him by asking
So let’s say that A goes into a cake shop and asks B to make a cake and B says “I won’t do it.” If there is a law against B refusing to bake cakes for certain reasons then the court system is trying to sort out what B’s internal feelings are. Why did B refuse to do this? Too busy at the time? Did not think the project was interesting? Disliked A because A belonged to some protected class?
There’s a curious, selectively-invoked conservative myth that taking account of the intent behind an action is somehow establishing a novel kind of thought-crime.
In fact, at least as far back as the Hammurabi Code, it has been recognized that ascertaining an act’s intent is a crucial aspect of justice. Common sense concurs. If I sell someone a product I’ve misrepresented, whether there’s criminal fraud depends on whether I knowingly and intentionally deceived them. Possession of lock-picks may be legal or not depending on intent to use them for a burglary. If I knock someone over and they fall off a ledge, the extent of my culpability depends on whether I meant to collide with them at all, and if so whether I intended to shove them off the ledge (or even knew it was there). Etc.
Determining intent is also, of course, a key element of antidiscrimination law. It’s one of many practical problems that must be solved in enforcing most laws. Like all the other elements of establishing guilt (was the defendant even present at the scene?; did the victim shoot first?; etc.), the task can be difficult but is not necessarily insurmountable. The practical difficulty of proving intent certainly does not warrant a 4,000-year rollback in civilization’s understanding of justice.
In the case before the Supreme Court, intent is easy to establish because it’s openly acknowledged. In other cases–for example, landlords refusing to rent to blacks or Jews, but hiding behind a pretext–it’s sometimes necessary to show a pattern by comparing a sufficiently large sample of otherwise-similar applicants who are systematically approved or rejected consistently with a proscribed criterion.
He cited a New York Times article that says that this particular case is not about free expression:
Although Phillips’s cakes are undeniably quite artistic, he did not reject a particular design option, such as a topper with two grooms — in which case, his First Amendment argument would be more compelling. Instead, he flatly told Craig and Mullins that he would not sell them a wedding cake.
Readers: Who wants to bet on how the Supreme Court rules?
[My bet is that they rule in favor of the baker. My first reason is that the justices are super old. They grew up in a country of 150 million with plenty of elbow room and haven’t thought about how when the U.S. hits 400 million in population there is a high cost to having an outlier/throwback/Neanderthal such as the baker running around loose. Second, they will be concerned about a slippery slope. If this baker can be fined or imprisoned due to his irrational (see above) thoughtcrime, how far does the government have to go to stamp out non-violent dissent from the latest and greatest official thinking on social issues? Finally, the justices know that about half of Americans are at least sort of religious (Pew). They won’t want these 165 million people to see the Supreme Court as illegitimate so it would make sense to throw religious Americans a bone of some sort. (Based on their selection of people for stories on furniture-, house-, or car-shopping, our media suggests that at least 30 percent of married couples are same-sex, so the typical business owner will not want to alienate this group of consumers.)]
There is a separate economics angle to this. Back in December 2017, I wrote to my friend as part of the above exchange
The U.S. spends about $300 billion per year on lawyers and for every $1 spent on a lawyer there are probably $2 spent on non-lawyer time and money worrying about litigation, being deposed, trying to avoid litigation, trying to comply with various regulations, etc. (see http://www.realworlddivorce.com/InOurEconomy for the source of the numbers on the total legal spend).
The NYT piece you referenced sounds reasonable, but it is not cost-free to have a legal system figure out what happened. Figure a minimum of $500,000 in legal fees, depositions, etc. to figure out whether a dispute was about the message on the cake or the customer. And you won’t know the “truth” after this. You will just maybe have a better idea of what most likely happened. Just having Americans print and then read that article shrinks the GDP. Americans could have been learning a skill instead with that time.
Same deal with all of the arguments about who had sex with whom and in exchange for how much cash or career advancement 20 years ago. The GDP shrinks every time people are contemplating Kevin Spacey or Harvey Weinstein and their various sex partners.