Dec. 10, 2017

The Supreme Court heard arguments this month in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case about whether the government can make a Christian baker design a cake celebrating a same-sex wedding.

Jack Phillips, the shop owner, sells pre-made baked goods to anyone, but he won't create things that carry a message inconsistent with his faith. He won't make cakes that celebrate Halloween, or that carry vulgar or indecent words. For similar reasons he turned down a request by Charlie Craig and David Mullins to make them a custom wedding cake.

They filed a claim under the Colorado Anti-Discrimination Act with the state Civil Rights Commission. It had little sympathy for Phillips. One commissioner said "it is one of the most despicable pieces of rhetoric that people can use . . . to use their religion to hurt others." The Commission ordered Phillips, if he wanted to do weddings at all, to design cakes for same-sex couples, and to teach his staff (basically, his family) that this was the right thing to do.

The Colorado courts agreed. The Supreme Court was more troubled. Justice Kennedy, who wrote the opinion in Obergefell v. Hodges protecting same-sex marriage, said he thought Colorado "ha[d] been neither tolerant nor respectful of Mr. Phillips's religious beliefs." But Kennedy worried about the implications of ruling for Phillips. Could he then "put a sign in his window, 'We Do Not Bake Cakes for Gay Weddings,'" Kennedy asked?

Perhaps. But that would be a different case. Phillips was not going out of his way to proclaim his opposition to gay weddings. He just wanted to be left alone. Colorado insisted that he join in the celebration, and write out his support for Charlie's and David's nuptials with an icing nozzle.

The more likely scenario, if Phillips wins, is that Colorado will make him put a sign in his window saying "We Do Not Bake Cakes for Gay Weddings," and telling gay couples where they should shop instead. That's what California did in NIFLA v. Becerra, another case pending in the Court this term. California makes pro-life pregnancy centers post signs in their waiting rooms (in 22-point type) saying that the state provides free abortions, and telling women where to get them.

This is also what the Department of Health and Human Services did with its contraceptive mandate. HHS ordered the Little Sisters of the Poor, if they weren't going to provide their employees free contraceptives, to file a form cueing their insurance company to step in.

Why this passion for making people swear their allegiance to modern sexual orthodoxies? Before we had a first amendment, the Constitution of 1789 said only two things about religion. Both were designed to prevent the government from making people subscribe to propositions they had religious scruples about.

The Religious Test Clause in article VI says that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." It forbids laws like the English Test Acts (aimed at Catholics and nonconformists) that required people to take communion in the Church of England in order to hold office.

And throughout the original Constitution, any clause requiring an oath allows people with religious scruples about swearing (Quakers were the group the framers had in mind) to "affirm" their obligation instead.

Those who fought and won the American revolution were wiser and more tolerant than the winners of the sexual revolution. They refrained from making religious outliers confess their belief in the majority's creed. I hope the Court insists on the same degree of tolerance when it comes to our new fertility rites.