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August 19, 2015

Make Him Bake Cake

Compelling Participation in Gay Wedding Celebrations Turns the Oppressed Into the Oppressors

Because Colorado would not grant them a license, David Mullins and Charlie Craig got married in Provincetown, Mass., 2,000 miles away. Because Jack Phillips would not bake them a wedding cake for their hometown reception, they bought one from another bakery in the Denver area.

The huge difference between the burdens imposed by those two refusals reflects a crucial difference in power that has been obscured by the campaign to compel social acceptance of same-sex marriage. You know something has gone terribly wrong with our reasoning about rights when the same state that forced Mullins and Craig to travel so far for their nuptials insists that Phillips had a legal obligation to bake a cake in celebration of the marriage it refused to recognize.

Mullins and Craig got married in 2012, two years before a federal appeals court decision forced Colorado to lift its ban on same-sex unions. They therefore had no choice but to leave the state for their wedding, since Colorado was stopping every county within its borders from issuing marriage licenses to same-sex couples.

Phillips, who owns Masterpiece Cakeshop in Lakewood, has no such control over his fellow bakers. Mullins and Craig therefore had many choices when he turned down their business, saying his religious beliefs precluded him from baking a cake in honor of a gay wedding. They nevertheless argued that Phillips was legally required to bake them a cake, and last week a state appeals court agreed.

Upholding a 2014 decision by the Colorado Civil Rights Commission, the Colorado Court of Appeals said Phillips violated the Colorado Anti-Discrimination Act, which makes it illegal for a business to deny customers “full and equal enjoyment” of its goods or services “because of” their sexual orientation. The court rejected Phillips’ argument that forcing him to bake gay wedding cakes violates his right to freedom of speech by compelling him to endorse a message with which he disagrees and his right to the free exercise of religion by requiring him to act contrary to the teachings of his faith.

The court said simply baking a wedding cake does not qualify as “expressive conduct” protected by the First Amendment, although it left open the possibility that inscribing the cake might. As for the religious freedom claim, the judges noted that the Supreme Court since 1990 has taken the position that “neutral laws of general applicability” are constitutional, even if they make it difficult or impossible for someone to practice his religion, unless there is evidence of an intent to target a particular sect.

Whatever you think of these constitutional conclusions, let’s be clear about what’s happening here: In 2012, according to the state of Colorado, Mullins and Craig had a “civil right” to a cake baked by Phillips, but they did not have a civil right to a marriage recognized by the state of Colorado. The truth is precisely the opposite.

Because of the special powers they wield, including the power to decide who qualifies for the various legal benefits of marriage, governments have an obligation to treat people equally, without regard to sexual orientation. Private citizens like Phillips have no such obligation unless legislators decide to impose one.

When they do, they are not, as Craig puts it, sending “a clear message … that freedom means freedom for all.” They are saying the freedom of some must be sacrificed for the comfort of others.

Thanks to the Supreme Court, same-sex marriage is legal throughout the country, as it should be. Most Americans welcome this development. Must the minority that doesn’t be bullied into submission?

It is not hard to understand why Mullins and Craig, especially given their state’s policy of discriminating against gay couples, were offended by Phillips’ refusal to bake them a wedding cake. But their response — using the coercive power of that same state to make him violate his deeply held beliefs in the name of tolerance — turned the oppressed into the oppressors.


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