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.

  • phillysportsfan

    ok, first off, no one is going to heaven or hell because those are made up places that don’t exist. 2nd, you’re indirectly reducing the rights of atheists by saying that discrimination based on religion is ok, yet discrimination based on nothing more that one’s own prejudice is not (I don’t think you’d be defending anyone’s right not to serve gays based on the rationale “i hate fags.”) finally, sure, in boston or denver you probably have a choice of bakers (or banquet halls or photographers or bridal shops, etc.) but if you’re out in the sticks and all the businesses are run by people that hate you for who you are and won’t serve you because of that, what then? why should you have be inconvenienced because of others’ prejudice?

  • Susan

    Well said and I agree with you 100%

  • Ron S.

    I disagree 100%. Religious grounds are a ludicrous justification for discrimination. If Jack doesn’t agree with same-gender marriage, then he should not marry a man. Otherwise, he should keep his bigoted views to himself. Here’s where it’s easy to cut through the confusion: if Jack would refuse to make a wedding cake for an interracial couple, he would be violating civil rights laws. The same laws should apply in this case.

  • JP_Melle

    What if this guy’s religion discriminated against people of color, or white people, or interracial couples, or men, or women? Open to the public means open to the public.

    • Richard Colton

      “place of public accommodation” right? good point. I think I’d probably agree with you if the store owner refused to sell a cake to the couple or refused them entry into the store. This case seems less cut & dry. If I’m an artist and work on a number of projects per year, don’t I have a right to be selective? Tough issue though, think I’m siding with Joel w/ individual freedom

      • JP_Melle

        You make whatever art you’re inspired to make. If you want to sell your art publicly, you don’t get to choose your patrons based on prejudice. Allowing one seller to do so opens the door to allowing multiple sellers to do so, which hedges back closer to separate but equal.

        • Richard Colton

          agree. I got the impression that it was a commission, not an as-is sale. So for example, store sells cake toppers to the public – I buy two “bride” cake toppers for a cake, the store can’t refuse to sell them to me. If I’m entering into a contract to create a commissioned piece, that’s different. I can choose with whom I work. Otherwise, like Joel said, my own freedom is limited.

          I think a little common sense is warranted here. As an Episcopalian, I think the Catholic church down the street would be perfect for my wedding. They’ll probably say no. Was that discrimination? The barbershop up the street cuts hair for $15, if my sister goes in and they won’t give her an up do for the same price, was it discrimination? Can my kosher catering company continue to refuse to cater an event on the grounds that non-kosher food is served in the same venue? Seems like there’s an adult way around this where both sides show a little tolerance. Something like – I’ll make you the cake, you put the toppers on yourself.

          • JP_Melle

            A Catholic church is not a place of public accomodation. A catholic wedding is not a service they offer to the public. It is a specifically religious ceremony they perform for members of the church in good standing. It’s not remotely the same as buying a cake from a bakary.

            Nor is this an artist they are privately commissioning. If an artist opens up a public store and offers a catalogue of art for sale, they wouldn’t be able to refuse customers for discriminatory reasons either. This is two men, who walked into a bakary and ordered a wedding cake, the same cake that was available to anyone else who would order it (you can’t premake wedding cakes, food goes bad), who were refused exclusively for being gay Not only is it wrong, it’s illegal.

          • Richard Colton

            I suspect that isn’t the end of that. Interesting to see if the judges ruling stands. My personal opinion is that the store owner has a right to his beliefs, same as the couple. And once he stated his opposition to same sex marriage, I’m not sure why the couple was so insistent. Sounds like they need a lesson in tolerance.

          • Alec Leamas

            You’re being a bit credulous if you really think that these two men just innocently happened into this one particular bakery to order a wedding cake.

          • davids12

            So we should just assume, based on nothing, that they’re lying? You think they said, “Hey, today, why don’t we head down to that anti-gay bakery and get denied service, it’ll be a hoot”?

          • Alec Leamas

            No, we should assume, based upon their behavior after the fact in litigating this case – because they absolutely, positively had had had to have this one cake from this one bakery out of all of the bakeries in all of the land – that their order was a pretext.

          • davids12

            That’s simply completely false – they went to another bakery (Le Bakery Sensual) on the same day and got a cake. The store broke the law – it doesn’t get a pass because other stores aren’t breaking the law. Furthermore, the couple did not do anything about it beyond posting on Facebook. The post went viral and eventually the ACLU filed a complaint on their behalf.

            In short, the basis for your assumption is false. Now let me make a prediction – I’m guessing learning that isn’t going to change your belief one iota. Will you prove me wrong?

          • davids12

            That’s simply completely false – they went to another bakery (Le Bakery Sensual) on the same day and got a cake. The store broke the law – it doesn’t get a pass because other stores aren’t breaking the law. Furthermore, the couple did not do anything about it beyond posting on Facebook. The post went viral and eventually the ACLU filed a complaint on their behalf.

            In short, the basis for your assumption is false. Now let me make a prediction – I’m guessing learning that isn’t going to change your belief one iota. Will you prove me wrong?

          • Alec Leamas

            No, because the “facts” that you cite are immaterial to disposition of the case that I made and would require me to resolve the matter on the sayso of the aggrieved queens. Nobody backs their way into litigation inadvertently, and the fact that they knew that they couldn’t force this poor fellow to bake their cake in time for their mockery of a wedding doesn’t change any part of this controversy. It still stands that they really want to rub this baker’s nose in it and use the force of government to break him.

            I suppose you don’t get the idea that lots of people think the law is bad, and quite possibly contrary to superior laws that protect Americans’ right to religion, speech, assembly, and conscience. Maybe in your world they all take a back door to celebrating where two guys stick their wangs, but plenty of people think you’re overplaying your hand.

          • davids12

            “aggrieved queens”
            “celebrating where two guys stick their wangs”
            “mockery of a wedding”

            You know that sort of thing really has no effect but to make your argument less compelling, right?

            “immaterial to disposition of the case that I made”

            They directly contradict the “evidence” you brought up in substantiation of your claim that the “order was a pretext”. You’re simply claiming it’s immaterial because you have no response.

            “would require me to resolve the matter on the sayso of the aggrieved queens”

            That is, of course, completely false – other people filed concurring affidavits, not to mention that Masterpiece Cakeshop openly stated during the litigation that they will not create wedding cakes for gay couples.

            “Nobody backs their way into litigation inadvertently”

            This makes absolutely no sense given your claim that “the order was a pretext”. Nobody has ever sued anyone for anything that wasn’t a pretext?

            Masterpiece Cakeshop had never said they would not bake cakes for gay couples prior to this. So unless you believe that no gay couple could ever genuinely want a cake from a bakery, you’re just being ridiculous.

            “lots of people think the law is bad”

            That has no relevance whatsoever to the question of whether these men laid a deliberate trap for the bakery.

            “quite possibly contrary to superior laws that protect Americans’ right to religion, speech, assembly”

            Given that these laws are exactly the same as the nation’s anti-discrimination rules under the Civil Rights Act, which have been repeatedly challenged and upheld, you may believe that but there is little evidence to support it. New Mexico’s Supreme Court just upheld virtually the same law in the case of a wedding photographer who refused to photograph a wedding, which is in a far more gray area than a brick-and-mortar bakery.

  • Tom

    Would you really want to eat a wedding cake that someone was forced to make for you under threat of prison?

  • rakihi

    I strongly disagree with the author on this. I’m not sure he even read the judge’s ruling in this case before he wrote this article.

    He wishes the couple had never gone to Masterpiece Cakeshop in the first place since the owner opposes marriage equality. But the couple had no way of knowing that until after they had already gone in and were told, in essence, “We do not serve your kind here.”

    I highly doubt that the author has ever experienced the same kind of humiliation, otherwise, he wouldn’t be so quick to blithely suggest that they simply go to another shop.

    The author attempts to excuse the actions of the baker, Jake Phillips, by saying that he is an individual. But Phillips was not asked to bake a cake as a private citizen Rather, he was asked to bake a cake in his official capacity as a public accommodation, and as a public accommodation, his business is subject to the laws that govern such things, including an anti-discrimination law.

    The author’s final statement is particularly outrageous. He essentially blames the victims of discrimination for creating trouble by wanting to be treated as the law requires everyone to be treated.

    Unless your god is the Almighty Dollar, I don’t see how operating a
    for-profit business that sells goods and services to the public in
    exchange for monetary compensation qualifies as an act of religious
    worship.

  • geraldshields

    Discrimination or freedom of speech / expression and religious freedom? I argue that there was no legitimate business reason for the refusal of service, and so this was discrimination which was arbitrary and unlawful.

    The Federal Civil Rights Act guarantees all people the right to “full
    and equal enjoyment of the goods, services, facilities, privileges,
    advantages, and accommodations of any place of public accommodation,
    without discrimination or segregation on the ground of race, color,
    religion, or national origin.”

  • davids12

    “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.”

    … I’m sorry, I feel like I’m missing something here. Are you seriously saying that you believe that if your friends opened a bakery, they would want to refuse service to some race, gender, or sexual orientation?

    “What’s a First Amendment for if we can’t express our private selves in public?”

    No one said the baker couldn’t express himself. He told the couple that he did not believe in their marriage – that’s protected. Not part of the complaint. If he had stopped there, the couple likely would have walked out and he’d have been fine. It’s the part where he refused them a cake because they were gay that he ran afoul of the law – your rights to expression end exactly where other people begin.

    “with an inconsistent set of answers. American Indians aren’t allowed peyote at their services, but communion wine stayed strongly alcoholic during Prohibition.”

    American Indians are generally allowed peyote at services, actually – federal law and most states specifically exclude peyote in bona fide religious ceremonies from the drug laws, just as Prohibition excluded liquor from the ban that wasn’t for “beverage purposes”, i.e. religious or medicinal.