HAVE A TASTE
There’s a Simple Compromise to the Gay-Wedding Cake Fight. Does Anybody Want It Though?
Private businesses can’t discriminate, but religious institutions can. Therein lies the solution—if the right and left actually cared about solving the problem.
The Masterpiece Cakeshop case, which the Supreme Court is set to hear next month, looks like an unavoidable conflict between a conservative Christian baker and a gay couple. In fact, a compromise would be easy to work out – the problem is that no one wants one.
The facts are straightforward. Jack Phillips is the owner and chief baker of Masterpiece Cakeshop, and a religious, conservative Christian. When David Mullins and Charlie Craig visited the bakery for a wedding cake, Phillips turned them down; he won’t do cakes for same-sex weddings.
Both sides feel aggrieved. From the perspective of Mullins, Craig, and the state of Colorado, this is clear discrimination. Yes, there are other bakeries around, but that’s not the point. Allowing Phillips to refuse them service is like putting a “No Gays Allowed” sign in the window. This is what lawyers call “dignitary harm:” even if other bakeries would serve them, the refusal says that discrimination against LGBT people is okay, and that’s a harm in and of itself.
From Phillips’ point of view, however, Colorado is forcing him to choose between his business and his religion. Although you or I might disagree with him, Phillips says that baking a cake is a form of participating in a same-sex wedding, and that’s against his sincere religious beliefs. He’s said he’ll close up shop rather than do it.
It seems like somebody’s got to lose. Either every gay person in Colorado now knows that they can be turned away from any business, job, hotel, restaurant, bakery, caterer, pharmacy, you name it on the basis of religious freedom – or every conservative Christian in Colorado knows that they can be forced to either bake a cake, take a photo, design a floral arrangement, or otherwise facilitate a gay wedding, or close down.
There is a way out though.
All Masterpiece Cakeshop has to do is state that they only provide wedding cakes for weddings that take place at certain churches (and, if they like, synagogues and mosques). Don’t turn people away based on their identities, or the type of wedding they’re conducting. Turn them away based on the place where they are getting married.
That leaves the discrimination up to the religious institution, and churches are allowed to discriminate. They can refuse to host same-sex weddings, interfaith weddings, interracial weddings – whatever. And almost everyone agrees that they should be allowed to do so. Whatever else it means, the First Amendment definitely covers religious institutions’ rights to decide how to practice their religion.
Now, would Masterpiece Cakeshop then be discriminating on the basis of religion? Not if the compromise is done right.
First, since the bakery (or photographer, or florist) is limiting their services to certain physical venues, rather than discriminating against individual customers, the practice is what lawyers call “facially neutral.” If you’re getting married at venue A, B, or C, we can provide a cake for you. Period. You can be of whatever religion, sexual orientation, or gender identity that the venue allows; that’s up to the venues. All the bakery cares about is where the wedding is happening.
To be sure, it’s possible that the same arrangement could be used as a cover for invidious discrimination – if it’s not applied evenly, for example. But in principle, the service provider says they’ll only do weddings at specified venues, and no one is denied service on the basis of a protected characteristic. The venue, of course, does discriminate, but that’s perfectly legal.
It’s also possible for legislatures to tailor a narrow religious exemption – in contrast to the extremely broad ones like those passed in Mississippi, North Carolina, and Indiana – to allow businesses to contract exclusively with places of worship when it comes to wedding-related services. This extremely narrow exemption doesn’t allow anyone with a religious pretext to opt out of obeying the law; it is tailored only to businesses contracting with religious institutions. It could also be limited to businesses with fewer than five employees, or businesses engaged in expressive arts, or even to sole proprietorships.
Either way, contractually or legislatively, the compromise removes the dignitary harm – there’s no more “No Gays Allowed” sign, literally or figuratively – yet protects the religious liberty interests of expressive artists. No one is turned away because they are gay. No service provider has to provide services to a wedding they find religiously objectionable. Everyone coexists.
Of course, such an exclusive relationship might entail some loss of revenue for businesses like Masterpiece Cakeshop. But not as much loss as closing up shop, and probably not that much in general since the exclusivity provision only covers wedding cakes, photos, or flowers, not a whole business. Whether accomplished contractually or legislatively, it’s a compromise, after all.
But in fact, no one wants this to happen.
On the right, New Christian Right organizations have been playing the “war on religion” song for decades now, and it has proven its worth in multiple ways. The overall frame resonates with Christian narratives of martyrdom. It gins up opposition to Democrats, motivating the base and empowering the Christian Right within the Republican Party. It empowers and finances national political organizations; Masterpiece Cakeshop itself has appeared in countless ads for the Alliance Defending Freedom.
By now, this mantra has been repeated so many times that believers believe it. Never mind that Jesus said “render unto Caesar what is Caesar’s,” clearly instructing his followers to obey the secular law even if they have religious objections to it. The horse has left the stable; the ‘war on religion’ is now an article of faith.
And it recasts the culture war as a defensive battle against a secular government bent on destroying Christianity, which is far more sympathetic than mean Christians turning gay people away from their businesses. This isn’t persecution; it’s religious freedom! Several studies have shown that if the same fact pattern is depicted in terms of the government persecuting Christians (i.e., by not letting them persecute gays), support rises significantly. “Religious liberty” is a better weapon with which to fight the culture war.
The left isn’t particularly interested in compromise, either. Most progressives have cast people like Phillips as bigots, after all. And the Left is probably correct that time is on their side, especially when it comes to LGBT people; large swaths of younger evangelicals don’t support refusing services to gays, and think the whole focus on sexual and gender issues is misplaced. Why compromise when you’ll win eventually anyway?
Moreover, religious exemptions have a dark history; in the 1960s and 1970s, conservatives sought religious exemptions to civil rights laws and desegregation. It was wrong then, and it’s wrong now. There’s little appetite on the left for a work-around that would let Phillips exempt his business from the laws everyone else has to obey, or perpetuate an oppression that we should be getting beyond.
At the end of the day, both sides would rather lose than compromise. They each have a good shot at winning outright, but failing that, a loss will galvanize support. Even if they lose, they win.
This whole confrontation could be avoided relatively easily. But that’s not what the combatants want.