Having the Gay Marriage Cake, and Eating it Too

How to balance between gay rights and religious freedom?

Photo | Shutterstock.com

Photo | Shutterstock.com

First of all, let me belatedly congratulate Charlie Craig and David Mullins, a Colorado couple who got married in Massachusetts last year. I hope that Pennsylvania’s gay couples will be able to join them at the altar soon, and I’m glad the 21st century has seen a recognition of their right to get married. It is the best thing about living now that I know of.

But I wish Craig and Mullins had decided to get their wedding cake somewhere else.

Instead, they went to Jack Phillips of Masterpiece Cakeshop in suburban Denver. Phillips, a devoutly conservative Christian who opposes gay marriage, refused to make their cake. Craig and Mullins sued. And now a judge has decided that Phillips must make wedding cakes for gay couples — despite his religious beliefs — or face fines.

Which seems wrong to me. I’ve said on multiple occasions that I want my gay friends to get married and my conservative Christian friends to have the freedom to disapprove. But that result, as we move ever closer to full gay equality in this country, suddenly appears less likely.

Conservative Christians have long argued that granting gays and lesbians the freedom to marry would result in an impingement on Christian freedoms to oppose it. That always seemed an unlikely scenario to me; the United States has a long history of expanding minority rights — and a long history of white guys panicking that the granting of those rights would result in their own oppression. White men have feared black men taking their women and women taking their jobs; this just seemed more of the same old crap. Freedom is rarely such a zero-sum game.

On the other hand, Jack Phillips is talking about going to jail rather than make cakes for gays, so maybe I was incorrect.

Let me plead here to a possible inconsistency. In recent weeks, I’ve argued that Hobby Lobby should, under the requirements of Obamacare, be paying the cost of insurance to cover employee birth control. When private conscience meets public obligation, I’ve suggested, private conscience must sometimes yield.

Just, you know, not always.

The difference? I try to discriminate in favor of individuals over institutions. Hobby Lobby isn’t going to go to heaven or hell; the corporation should not be able to interfere with employees’ private decisions about birth control by avoiding employment requirements. Jack Phillips, on the other hand, is an individual, and his individual right not to make a cake should be protected — no matter how much I disagree with him.

If baking — or wedding photography — required an incredible amount of specialization, I might reconsider this point. I’m not in favor of conscience clauses that allow pharmacists to decline to dispense birth control. The difference between a pharmacist exercising their individual conscience and Phillips? Due respect to wedding bakers everywhere, but in a pinch I can make my own Betty Crocker cake mix; I cannot, however, manufacture a batch of IUDs. The availability of services makes a difference in these calculations; I’m pretty sure that in suburban Denver there are plenty of bakers willing to accommodate Craig and Mullins.

All of which means that it’s difficult for me to see a hard and fast rule, one way or the other, that settles these questions. Just two small guidelines: To favor the individual over the corporation, and open society over closed systems.

Many of my gay-marriage supporting friends see no conflict here. The law since the 1960s has been clear on one point, they say: If you want to serve the public, then you serve the public. Don’t want to choose between your business and your beliefs? Don’t go into business, my friends say. That makes some sense, but it doesn’t feel wholly satisfactory, does it? It doesn’t feel like the definition of “freedom” those friends would want for themselves. What’s a First Amendment for if we can’t express our private selves in public?

As society we’ve long tried to balance these questions of freedom versus religion and come up with an inconsistent set of answers. American Indians aren’t allowed peyote at their services, but communion wine stayed strongly alcoholic during Prohibition. If we decide 100 percent in favor of religion, secular society becomes impossible. If we decide 100 percent in favor of social obligation, then individual liberties become impossible. So we work at it. The results are always  imperfect, and somebody will always be left unhappy with the results.

There would, however, probably be less unhappiness if Craig and Mullin had simply chosen to purchase their cake somewhere else. They didn’t. The results seem likely to mean less freedom for somebody. That’s too bad.

Follow @JoelMMathis on Twitter.

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