My dad ran a small bakery and I spent thousands of hours working there, baking, selling, delivering, sometimes even decorating cakes and other pastries. To him, the work was not just professional, but also personal: he knew most of his customers who came from our church, school, and neighborhood to shop. His front door was open to customers, but his back door welcomed friends for a cup of coffee, a donut and a chat while he worked. As a Christian, his work was also part of his ministry—he exercised his values there and helped a lot of people.
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So I took more than a passing interest when a judge in Colorado recently ruled that a retail bakery had violated the law for refusing to decorate a cake for a same sex wedding celebration. Though my dad and the family bakery are long since gone, I could imagine him struggling with whether he could place two grooms on top of a wedding cake. As the Colorado baker argued in court, a cake decorator’s work is creative expression. When you take the cake to the church or party and set it up, you are in some sense a participant in the process. All this was a problem for the baker, whose religious convictions do not allow him to support same sex marriage.
But Colorado administrative law judge Robert Spencer said no, a bakery is a public accommodation, defined rather broadly in Colorado as any business that sells to the public. And, as such, a cake decorator cannot discriminate based upon sexual orientation. Even the fact that same sex marriage is illegal in Colorado did not cut the baker any slack. Next time he either decorates that cake, faces fines or jail, or closes the business, as the owner of a bakery in Oregon did in a similar situation a few months ago.
Although some have argued that this is a small matter—“let them eat cake”—it is part of an important and growing clash between one person’s First Amendment rights to freedom of religion and speech and another’s civil and social rights. With same sex marriage now legal in 16 states and still counting, that arena alone will generate increased conflict of this kind. For example, a wedding photographer in New Mexico who refused to serve a same-sex commitment ceremony on similar free speech and free exercise of religion grounds was held in violation of that state’s anti-discrimination laws and is appealing the case to the U.S. Supreme Court.
It’s not just about businesses and their customers, either. Hobby Lobby will be in the U.S. Supreme Court this term because the Affordable Healthcare Act requires them to provide contraceptive coverage to employees in violation of its owners’ religious principles. Indeed there are now over 80 of these lawsuits, and the D.C. Circuit Court of Appeals recently ruled that business owners do not give up their First Amendment rights merely because they choose to operate in a corporate form.
These are tough cases in part because both sides want an all-out win, not a compromise. Advocates for contraceptive coverage and same sex marriage argue that these are fundamental, constitutional protections that must be defended, essentially at all costs. Progressives and social activists see the contraceptive rights of Obamacare and same sex marriage as the new civil rights struggles and are unwilling to compromise. On the other side are those seeking to protect freedom of religion, which they believe to be under steady assault in society and especially in the courts. Some conservative Christians foresee the day when merely reading certain passages of scripture from the Bible, even in a church pulpit, will be considered “hate speech” under the law.
But in the end, there will need to be a solution in which the rights of both are recognized and they are able to live together in the same society. Will this be accomplished by balancing out the rights, one against the other? Should people in the expressive business—photographers or maybe bakers—have stronger rights than garden-variety businesses? Should public accommodation businesses be more narrowly defined than “anyone who sells to the public?” Or will one side win and the other lose? These are tough questions the U.S. Supreme Court will face in 2014.