The Masterpiece Cakeshop case was decided by the Supreme Court last summer in favor of the baker who refused to make a wedding cake for a same-sex marriage, but it was a narrow ruling that set little or no precedent. It remains an open question how far “My religion demands that I not serve your kind” can go.

Before that case was decided, a Christian blogger wanted to demonstrate the hypocrisy of gay couples asking Christian bakers for wedding cakes. So it’s not okay for Christian bakers to refuse? Let’s see how gay bakers like it when the tables are turned!

The Freedom Outpost blogger asked thirteen gay or pro-gay bakers for a cake that said, “Gay Marriage is Wrong.” Each baker turned him down.

If anyone who objects [says] our request for the cake was hateful, this is exactly the type of thing the homosexual activists do to Christian bakeries when they use the state to coerce them to make a cake with an explicitly pro homosexual slogan on it. Well, to turn it against them, we asked for an explicitly anti-homosexual marriage cake.

Blatant hypocrisy, right?

This inept experiment fails since the two positions aren’t symmetrical. The gay couple in the 2012 Colorado case simply wanted a wedding cake, not an anti-Christian or anti-conservative statement or even a political statement of any kind. It’s just a wedding cake—a symbol of love, remember? If someone is determined to take offense at that or see the wedding not as a loving couple wanting to get married but a deliberate poke in the eye of their lord and savior . . . well, I guess there’s not much you can do about that. But an objective observer would not see the imagined crime.

(Going forward, I’ll sometimes use conservative/liberal as synonyms for the clumsier phrases “same-sex marriage opponent/proponent.” This may bring to mind politics, but that’s fine since politics seems to be at least as much of a driving force as Christianity.)

The “Gay Marriage is Wrong” cake was just hate speech. You’re welcome to say that, but you’re not entitled to demand someone else to do so. You want a symmetric experiment? Ask a gay baker to bake a wedding cake for a straight couple with the familiar bride/groom cake topper. If the baker demands that you take your business elsewhere because they don’t serve “your kind,” then you’ve got a case.

I’m sure that Freedom Outpost knew that that request wouldn’t cause any sparks, which is why they didn’t try an honest symmetric experiment but opted instead for a groundless grandstanding opportunity.

Tom Gilson of the Thinking Christian blog supported this experiment:

Every gay marriage wedding cake, no matter how it’s decorated, says the man-woman-only view of marriage is wrong; but it takes special effort to make a man and woman’s wedding cake communicate that gay marriage is wrong.

First, the cake does have a point to make, but “the man/woman-only view is wrong” is not it. How hateful do you have to be to take a couple’s celebration of their special day and insist that the purpose is actually just to be mean to you?

If you enjoy being cantankerous, you could see the same kind of message in a man/woman wedding cake. Is this cake a deliberate jab at the couples who couldn’t afford a wedding this nice? Or the couples who only bought a small cake because they don’t have as many friends? Or the people whose potential mate turned them down?

Who would imagine any of those messages as subtext in a wedding cake? Who would think that that is a primary message of the wedding? If you’re thin-skinned, see this as a winner-take-all political game, and are determined to be offended, then you might see every gay wedding cake as a personal affront, but that’s your problem.

Onto the second point, that it’s hard to make the statement “gay marriage is wrong” with an ordinary wedding cake. That’s right, and that’s why the experiment was irredeemably flawed. A symmetric cake doesn’t actually make an objectively offensive message.

Is it always politics?

There’s an obvious lesson here—that a truly symmetric cake would actually send a loving message, so the objection to anti-discrimination laws was motivated by politics rather than logic—but that’s not where Thinking Christian wants to go with this. The post takes the conservative, anti-same-sex marriage position as a given and explores the argument from a strategic standpoint. How can conservatives make their message more palatable?

He summarizes the two positions this way:

Natural marriage proponents are defending an institution and standing in the way of gay couples’ desire to marry. [They] seek to disrupt two real people’s desires, hopes, and felt needs.

Same-sex “marriage” proponents are attacking an institution and defending couples’ desires to marry. [They] seek to disrupt the historic institution of marriage.

(It’s fun how he adds scare quotes to same-sex “marriage.” My position has been insulted even before he gets started!)

There’s a big difference between attacking marriage and seeking to expand it. And I presume by “disrupt the historic institution of marriage,” this is a claim that marriage is unchanging. It’s not and has been dramatically changed just in my own lifetime (more on that later).

I do understand his predicament as he lays it out. He must be the hard-ass, burdened with the unpalatable message. He’s attacking real people, while his opponents are attacking an institution. (That’s how he sees it, anyway. In fact it’s even more difficult since his opponents are attacking just one calcified interpretation of the institution. Making the institution of marriage open to more people has historically been on the right side of history.)

Then we get the predictable, tired arguments in favor of the conservative position: marriage is important for children (actually, healthy families are important to children), same-sex marriage is morally wrong (you’re free to avoid same-sex marriage if you don’t like it, but you’re not free to put your supernatural conclusions into laws), and so on.

And I must respond to his use of the phrase “natural marriage.” Marriage is not natural; it’s a manmade institution, and it can be defined any way that society decides. What he’s confusing with marriage is sex. Sex is natural, and marriage is not. Marriage wasn’t even a Christian sacrament until 1215.

Gilson wrings his hand at his difficulty.

Gay “marriage” doesn’t have to be right to win rhetorically. . . .

We ask gay bakers to make cakes for us that express our position, just as gays have asked some of us to [bake] cakes that express their position. Their request comes across as rhetorically natural, ours is clumsy and awkward.

You’re determined to miss the point. No, your request comes across not as awkward but as hateful because your game is not symmetric. This ridiculous demand to make a “Gay Marriage is Wrong” cake is as relevant to the issue as demanding a Ku Klux Klan cake. Neither is the symmetric version of a cake for a gay wedding.

Continue to part 2 for a critique of six steps the author recommends to help conservatives strengthen their rhetorical position.

Related post: 20 Arguments Against Same-Sex Marriage, Rebutted

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(This is an update of a post that originally appeared 1/26/15.)

Image credit: Arallyn!, flickr, CC

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This is the concluding post looking at popular arguments against same-sex marriage. Conservative radio host Frank Turek provides most of them. (Part 1 here.)

17. Christians are obliged to reject same-sex marriage!

Frank gives society some tough love:

If we celebrate harmful behavior we are being unloving. Love requires we tell people the truth, even if it upsets them.

We’ve already established that homosexuality is no more inherently harmful than heterosexuality (see argument 15). Franks “harm” is simply a caution against unsafe sex.

You can imagine that God creates homosexuals and then somehow is disgusted by his own creation, but it’s curious how God’s views seem to line up so conveniently well with your own—so conveniently that I wonder if you’re playing “God” like a sock puppet.

First show that your severe god and his supernatural world exists. Only then will worrying about his desires make sense. Until then, I have no respect for your fantasy.

18. Society will collapse!

Frank considers same-sex marriage in society and doesn’t like the orgy that he expects it to cause within the straight community.

Legally equating [straight and same-sex] relationships breaks the link between marriage and childbearing which leads to higher illegitimacy and a chain of negative effects that fall like dominoes—illegitimacy leads to poverty, crime, and higher welfare costs which lead to bigger government, higher taxes, and a slower economy.

So same-sex marriage lets slip that it’s actually sex that produces babies, not marriage? That’s already obvious to anyone who’s been paying attention. Frank concludes that this insight will cause straight people to have more sex outside of marriage, and that will produce more illegitimate children, but how does that follow?

Ignoring the incoherence of the orgy argument, it sounds like he’s confusing illegitimate children with unwanted children. Illegitimacy can simply be redefined. If illegitimacy causes problems, encourage society to define the problem away. As for unwanted children, I get it—that is indeed a problem. For that, I urge Frank to stop making abortion more difficult (more here).

19. There is no genetic basis for homosexual desire!

Frank gives us the benefit of his years of research into the biology of homosexuality.

After many years of intense research, a genetic component to homosexual desires has not been discovered. Twin studies show that identical twins do not consistently have the same sexual orientation. In fact, genetics probably explains very little about homosexual desires.

That may be right, but so what? We could wrestle with why someone is homosexual (one source: “Scientists hypothesize that a combination of genetic, hormonal, and social factors determine sexual orientation”) but that’s off topic. Frank wrongly implies from this incompletely answered question that no one is homosexual. I wonder if he’ll next tell us that, since he isn’t left handed, left handedness doesn’t exist.

Though conversion therapy (the conversion of someone from a homosexual into a heterosexual) still exists, its reputation is poor today, and it is illegal in some states. If people call themselves ex-gay and are satisfied with that self-image, that’s fine. Sexual identity is a spectrum, and a bisexual person might see themselves as gay one year and ex-gay the next. Just don’t conclude that homosexuality is bad, that it should be suppressed, or that no one is homosexual.

Exodus International was a Christian ministry devoted to conversion therapy. It operated for almost 40 years before disbanding in 2013. Its president admitted that their work had changed almost no one.

20. But same-sex marriage is unnatural. Just think about it. . . yuck!

[Marriages of this type are] alliances so unnatural that God and nature seem to forbid them.

Hold on. No, that’s my bad. This is actually from an 1878 Virginia Supreme Court decision, and the marriages that so bothered the judges in this case were mixed-race marriages.

But this is basically identical to what modern opponents to same-sex marriage say. Here is the 2003 view of Anglican archbishop of Nigeria Peter Akinola:

I cannot think of how a man in his right senses would be having sexual relations with another man. It is so unnatural, so unscriptural.

First off, homosexuality is natural. It has been documented in 1500 species of animals, including all great apes (of which humans are a part).

Second, if it freaks you out to think about two guys doing it, then don’t think about it. There are straight couples that do the same thing, and quite possibly in larger numbers—does that bother you?

You think gay sex is yucky? What’s yucky is the Christian as imaginary voyeur, peeking through the window into someone’s bedroom to criticize what they’re doing.

Third, let’s not put that much stock in whether something is supported by scripture or not. Slavery, polygamy, and genocide have clear support in scripture. Christians happily condemn those practices today, so the Bible obviously no longer binds us.

Fourth, the Bible says nothing about same-sex marriage. Even the widely cited verses arguing that homosexuality is wrong make a weak case.

Fifth, marriage was invented by humans. It’s changed in important ways in my own lifetime (see argument #3), and the legality of same-sex marriage is just one more change.

Finally, consider IVF, abortions, surrogate mothers, and modern technology that saves the lives of premature infants. Add to that erectile dysfunction pills, birth control pills, morning-after pills, and testosterone pills and tell me that there aren’t plenty of unnatural elements of sex within marriage already. And the focus of marriage laws is to a large extent on unnatural things like property rights.

Final thoughts

In the 1996 Romer v. Evans case, the Supreme Court struck down a state law that prevented any local government from recognizing homosexuals as a protected class. It stated, “If the constitutional conception of ‘equal protection of the laws’ [from the Fourteenth Amendment] means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” When we consider them, we find that the arguments raised by the anti-same-sex marriage crowd either have no legitimate governmental interest or are simply factually wrong.

To any Christians who may be having second thoughts on their opposition to same-sex marriage, let me suggest a graceful exit. Stop parroting conservative politicians and instead follow the lead of Jesus. We have no record of Jesus scolding homosexuals for what they did between the sheets, but we read much about his concern for the poor and sick. “Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.” Homosexuality isn’t a lifestyle choice, but hateful Christianity is.

Despite Obergefell, the June, 2015 Supreme Court case legalizing same-sex marriage nationwide, Frank Turek is still flogging this dead horse because it benefits him. He has an audience who will pay him to pat them on the head and assure them that their prejudice is not only reasonable but God given.

We can find a parallel in the 2014 Winter Olympics in Sochi. In the lead-up to the games, Russian president Vladimir Putin caused waves with his anti-gay pronouncements. With Russia in the spotlight, why would he make his country look bad within the international community? But Putin’s intended audience wasn’t the international community; he was grandstanding to the folks back home who rewarded a tough-on-gays attitude.

In a similar way, I doubt Frank cares much what outsiders think. I doubt he expects to convert many liberal Christians to his way of thinking. He just wants to please his conservative Christian constituents. Frank is the anti-gay Pied Piper, leading nervous Christians who are delighted to follow someone who will assure them that the sky is indeed falling and eager to pay for the privilege of being in his club.

If Jesus wants to perform an impressive miracle, he could get these Christians to focus on the actual problems in the world. God knows there are hundreds more important than this one.

“Every human being [already] has the same right to marry someone of the opposite sex”? That’s seriously the empty and heartless sentiment you want to be remembered for, Frank?

History is listening.

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(This is an update of a post that originally appeared 1/21/15.)

Photo credit: Wikipedia
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We’re looking at popular arguments against same-sex marriage (and a few that are just anti-gay). Conservative radio host Frank Turek provides most of the arguments. (Part 1 here.)

9. Human rights are God-given rights!

Rights are not based on human opinion, but on an unchangeable authoritative standard beyond human opinion. That’s why human rights cannot exist unless God exists. Without God everything is simply a matter of personal preference. . . . Human laws can only recognize God-given rights.

Frank needs to study up on how human rights come about. To take one example, voting rights have changed over time in the U.S., and God didn’t play a role at any stage.

As for God giving rights, he’s hardly a good moral model (more here, here, and here). The Bible isn’t law in the United States; the Constitution is, and Christianity is legal in the United States courtesy of the (secular) Constitution. “Because the Bible says so” is an inherently impotent argument in this country.

But let’s go there anyway and see what the Bible says. The Bible doesn’t directly address same-sex marriage. It does, however, make clear its disapproval of mixed-race (or intertribal) marriage. Here’s a modern rejection of interracial marriage from Bob Jones University built on an honest reading of the Bible.

Although there is no verse in the Bible that dogmatically says that races should not intermarry, the whole plan of God as He has dealt with the races down through the ages indicates that interracial marriage is not best for man. (1998)

The statement is unnecessarily hesitant. God plainly forbids intermarriage with foreign tribes (Deuteronomy 7:3). The prohibition against intermarriage is also given in Ezra (9:2, 10:10) and Nehemiah (chapter 13). King Solomon was also chastised for his foreign wives (1 Kings 11).

The apologist might respond that the prohibitions against intermarriage were meant to avoid temptations to worship other gods. That’s true to some extent but irrelevant—they’re still anti-miscegeny laws. If they’re wrong today, why excuse them back then? The Bible’s version of “God-given” rights and demands isn’t a morality than we can tolerate.

To understand the Bible on homosexuality, consider its stance on slavery. Some Christians say that slavery in the Old Testament was just God adapting to the imperfect, wicked customs of the time. All right, but take the same approach toward homosexuality. If God’s attitude toward slavery was adapted to the times (though that attitude makes no sense today), then maybe God’s attitude toward homosexuality was similarly adapted to the times and makes no sense today. These Christians might respond that the Old Testament was wrong on slavery but right on homosexuality, but what—besides personal opinion or preference—would they base that on?

The Bible gives no support to Frank’s “marriage = babies” argument (argument #5 in our critique). One kind of marriage we do see, however, is the marriage of Jesus to the church (as in Ephesians 5:25–27). In this marriage, it’s love that is central, not babies.

Paul is no asset to the Christian position either. He said, “It is good for a man not to have sexual relations with a woman” (1 Corinthians 7:1). This applied to married couples as well (1 Cor. 7:12)—so much for the celebrated role of procreation. He discouraged marriage (7:8–9) and rejected divorce (7:10–11). Marriage wasn’t even a Christian sacrament in the Church until the Fourth Lateran Council of 1215. I’m not surprised that Frank hides from this part of the Bible since it defeats his position.

10. Because morals come from the Creator!

Forget about the “separation of church and state” objection. It doesn’t apply here. . . . [The founders] recognized our moral rights come from the Creator and founded the country on “Nature’s Law” consistent with Christianity.

Since the Constitution is explicitly secular, history revisionists like to go back to references to a “Creator” and “Nature’s Law” in the Declaration of Independence. The DoI is an important historical document, but that’s it. These references impose nothing on American society today, and they’re not even Christian references but are deist.

The DoI makes clear that “Governments [derive] their just powers from the consent of the governed,” not God. And when a government becomes abusive, “it is the Right of the People to alter or to abolish it, and to institute new Government.” The government answers to the people, not God. Frank can’t find much support in this argument. More here.

11. My standard can beat your standard!

Frank next appeals to objective morality. You gotta have an objectively correct moral stance to make any moral claim, Frank tells us, and such a stance admits a god to ground it.

Homosexual activists say we’re wrong. But we can’t be “wrong” unless there is a real standard of “Right” from which we deviate.

Frank adds qualifiers—a real standard or something being truly right—to refer to objective morality, but I doubt that such a thing exists. I impatiently await evidence that there are moral truths that would be true whether anyone believed them or not (explored more here, here, and here).

So we should ask same sex marriage advocates, “What’s your standard? Who said same sex marriage is a ‘right’?” You and your friends? That’s not a right. That’s an opinion.

It’s like Frank isn’t aware of how social change works. You have a moral belief because you’ve concluded that it’s correct. You can then explore the why, but in the end the buck stops with you. It is your opinion.

That may not be much, but it’s all we’ve got. Groundless handwaving that God agrees with you counts for nothing.

So liberals can believe in and fight for same-sex marriage, but they can’t justify it as truly being a right without reference to the Creator. If they do reference the Creator, then they have the rationally dubious task of arguing that God affirms same-sex marriage.

I don’t claim that my conclusions are objectively true, and your claims to be able to tap into objective moral truth are backed up by nothing more than wishful thinking. I agree that God doesn’t affirm same-sex marriage, but God does affirm polygamy. You still want to model marriage after what God says?

Continued in part 5.

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(This is an update of a post that originally appeared 1/15/15.)

Image credit: Wikimedia
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We’re looking at popular arguments against same-sex marriage (and a few that are just anti-gay). Conservative radio host Frank Turek provides most of the material. (Part 1 here.)

5. Think of the babies!

Frank has an odd but popular view of what marriage is.

The real reason governments have an interest in promoting natural marriage [is] because only natural marriage perpetuates and stabilizes society. Strong marriage laws encourage men and women to procreate and then stay together to mother and father their children.

First off, Frank seems confused about cause and effect. Children are important to society, but give credit where it’s due. It’s sex that makes babies, not marriage. Two people might barely know each other but still start the baby-making process in five minutes, which has very little to do with what we think of as marriage.

Second, Jesus is portrayed in the Bible as the metaphorical husband married to the church. The ideas of joy, love, and protection are used when discussing this marriage, never making babies. Frank needs to explain why his definition is at odds with that in the Bible.

Third, it’s true that government makes laws that protect and encourage stable families. However, there’s a lot more to marriage than just children. For example, society makes laws about divorce, spousal abuse, care of elderly, taxes, control of assets when a spouse is imprisoned or incapacitated, the definition of common law marriage, inheritance, and more that affect marriages with or without children.

Fourth, Frank now has a fun slogan: “it’s not bigotry—it’s biology!” Don’t blame him; we’re bound by the realities of nature. But if it’s all about the biology, wouldn’t you expect to see this biology made plain in marriage vows or in the state’s marriage certificate? The silence screams volumes.

Let’s be consistent about the children. If marriage is all about making and raising children, then don’t offer marriage to straight couples who don’t or won’t or can’t have children. Give a willing couple five years, say, and if they don’t produce, yank the marriage license. Or consider another example: my wife and I won’t be making any more children, so do we deserve to still be married?

If you’re okay with childless straight couples, then be consistent and support gay couples with no interest in children. And if your focus is on the children, support the 40,000 children in California living with same-sex parents, prohibited until recently from getting married.

Frank again:

Children raised in biological two-parent homes tend to do better and cause society much less trouble than children raised in other situations

We probably describe the perfect household in a similar way, but just because we prefer a home with loving parents, financial security, a safe neighborhood, excellent schools, and good job opportunities doesn’t mean that that exists for every child. But if children’s environment is truly a concern, why not focus on what we all agree degrades that environment—urban decay, poverty, drugs, domestic violence, gangs, and so on? Why does Frank focus solely on the sex of the parents? I’m beginning to suspect that this concern for children is just a smokescreen.

And let’s not be too quick to rank mom-and-dad households over households with same-sex parents. One study came to the opposite conclusion. That doesn’t resolve the issue, but Frank’s assumption that same-sex households are significantly worse is at least debatable. Anyway, that’s irrelevant—if a woman got divorced, has custody of her child, and is now a lesbian (to take one example), the argument “But your family would be better with a man” is irrelevant.

And I’m surprised at Frank’s preference for biological parents. Doesn’t that undercut adoption as the conservative solution to unwanted pregnancies?

6. Homosexuality is harmful!

Don’t blame Frank for the facts of nature, he says. He reminds us that babies only come from male/female sex (which is clumsy sleight of hand to make us think that the topic is sex rather than marriage).

And then this:

I didn’t make up the fact that we all have desires we ought not act on, regardless if we are born with those desires.

He expands on this idea:

If you are born with a genetic predisposition to alcohol, does that mean God wants you to be an alcoholic? If someone has a genetic attraction to children, does that mean God wants you to be a pedophile? . . .

For the sake of civilization, we all need to restrain our destructive behaviors.

Sure, we have desires we shouldn’t act on—harmful ones. The problem for Frank’s argument is that he does nothing to argue that homosexual desires are harmful.

Continued in part 3.

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(This is an update of a post that originally appeared 1/7/15.)

Image credit: Joost Assink, CC
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Some Christians are determined to wear “We don’t serve your kind here” on their sleeves with a list of those people that their loving god tells them to discriminate against. For the previous post on the Masterpiece Cakeshop v. Colorado Civil Rights Commission Supreme Court case, go here.

Let’s move on to a legal analysis. The Freedom from Religion Foundation submitted an amicus brief in support of the gay couple who were refused a wedding cake. Since the FFRF legal team can make much more sense of the legal case than I can, I’ll summarize their arguments.

1. Free exercise of religion, as guaranteed in the First Amendment, is not an unlimited right. “Free exercise rights end where the rights of other citizens begin—and always have.”

The First Amendment to the U.S. Constitution begins, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Note the two clauses, which are often examined separately: Congress (that is, government) can’t establish religion, but they also can’t prohibit the free exercise of religion.

While government can’t prohibit the free exercise of religion, it can regulate conduct, even if that conduct is religiously motivated. The FFRF brief states,

The freedom of thought and belief—freedom of conscience—is absolute. But the freedom to act on religious beliefs in every circumstance of one’s life is not absolute, and religious conduct can and must be burdened by civil laws, especially those that protect the rights of others.

Not only can religiously motivated action be burdened, it already has been. Point 2 below gives examples of legal precedents by SCOTUS (that is, the Supreme Court of the United States).

1a. The Burwell v. Hobby Lobby case (2014) does not aid the baker

The baker claims that both Hobby Lobby and Masterpiece Cakeshop are closely held family businesses, so the conclusion in the Hobby Lobby case—that this kind of business can itself hold a religious belief that would exempt it from regulations—applies to Masterpiece Cakeshop as well.

The FFRF brief rejects this claim. The Hobby Lobby case was interpreting the Religious Freedom Restoration Act (RFRA), a federal statute, and didn’t touch on First Amendment claims. Since the opposite is true in the Masterpiece Cakeshop case—it relies on a First Amendment claim and isn’t affected by RFRA—Hobby Lobby is no precedent.

2. Suppose the free exercise clause were interpreted as a right to discriminate

What’s the difference between racial discrimination based on religious beliefs and racial discrimination not based on religious beliefs? There’s no way to distinguish them. Said another way, imagine discrimination that is falsely claimed to be based on religious belief. How could anyone reliably detect the lie? A decision in the baker’s favor would open the door to discrimination, racial and otherwise.

SCOTUS precedents make clear that the free exercise clause has limits.

While drawing the line can be difficult, the Court has been consistent in allowing religiously-motivated action to be halted when “the conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order.” (quoting from Sherbert v. Verner, 1963)

Here are several Supreme Court precedents:

• The owner of a restaurant chain claimed that the Civil Rights Act of 1964 imposed on his religious beliefs against racial integration (Newman v. Piggie Park, 1968).
• Bob Jones University claimed a religious right to refuse to admit as students not only interracial couples but students who supported interracial marriage (Bob Jones University v. United States, 1983).
• A Mormon man claimed a religious obligation to polygamy (Reynolds v. United States, 1878).

The religious claim in each case was made subservient to the law.

See also: The Kim Davis Discussion Must Include JFK

3. The baker argues that he wasn’t discriminating against people but against an event

Nope. You can’t discriminate against a same-sex marriage and not impact the couple. There wouldn’t be a same-sex marriage to discriminate against unless the couple were gay.

The baker attempts to make a distinction between refusing to sell a wedding cake that celebrates a gay wedding and refusing to sell a wedding cake to gay people. The only people having gay weddings are gay people, and you can’t discriminate against the wedding without discriminating against the people.

4. What limits would there be to a religious right to harm others?

We have only to look at the cases where SCOTUS has already rebuffed religious excesses to see that this is a valid concern.

Bob Jones Sr., televangelist and founder of his self-named university, infamously preached in his 1960 Easter sermon, “If you are against segregation and against racial separation, then you are against God.”

The university forbade mixed-race marriages, flouting a 1970 IRS (Internal Revenue Service) regulation that prohibited tax-exempt status for private schools with racially discriminatory policies, and the IRS revoked their tax-exempt status (ah, for the good old days!). The 1983 SCOTUS decision supported the IRS and concluded, “Governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs.”

Another example is a chain of health clubs owned by evangelical Christians who imposed their morality on employees. They refused to hire homosexuals, non-Christians, unmarried people living together, unmarried women working without their fathers’ consent or married women working without their husbands’ consent, and so on. Their beliefs weren’t the problem, but their actions were, and they lost in the Minnesota Supreme Court in 1985.

The lessons are that (1) actions can be regulated even if they originated in a sincere religious belief and (2) there is no religious right to infringe on other citizens’ civil rights.

5. How do we balance the establishment vs. free exercise clauses of the First Amendment?

We have a conflict between the establishment clause (government can’t promote religion) and the free exercise clause (government must leave religion alone). Should the baker yield to the customers and treat all equally (a win for the establishment clause) or should gay customers yield to the baker by finding a nondiscriminatory bakery (a win for religious sentiment)?

The FFRF brief concludes that the options aren’t equally balanced:

A ruling in the bakery’s favor would create an interpretation of the Free Exercise Clause that prefers, favors, [and] promotes religion over nonreligion. Whatever keyword one chooses, such a decision would undermine long-settled and critically important principles under the First Amendment’s Establishment Clause.

This summary of the FFRF brief was my attempt at distilling it down to make it shorter and more approachable, so any errors are mine.

Concluding thoughts

There’s an implied asymmetry in the baker’s favor. Religious views are considered fundamental, an important part of someone’s makeup. Those views are fixed, and it’d be much easier for the customer to take his request down the street to another baker than insist that the baker compromise his religious views.

But let’s question that. Instead of the customer going down the street to another baker, why can’t the baker go down the street to another church? Christians change congregations by the thousands every day. There’s nothing inherently wrong about same-sex weddings within Christianity. The baker can drop his bias and still be a Christian.

Of course, that’s unlikely to happen. While it’s easy to justify progressive views within Christianity, people rarely adapt their views to what Jesus says. Instead, they remake Jesus to fit their views. There’s little objective evidence with which to evaluate someone’s Christianity.

But then what happened to the foundational, immutable Christianity that we’re not allowed to impose upon? When a Christian’s views are nothing more than what he says they are, with no means for us to evaluate their logic, society shouldn’t bend over backwards to accommodate them. Believe what you want, but don’t think that society will put up with your actions if they hurt others.

To permit [violating laws for religious reasons]
would be to make the professed doctrines of religious belief
superior to the law of the land,
and in effect to permit every citizen
to become a law unto himself.
— Justice Antonin Scalia, in 1990,
quoting the SCOTUS decision
in Reynolds v. United States (1879)

Image credit: Open to All

Oh, dear—the sky is falling. Christian fundamentalists are painting the U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission, for which oral arguments are being heard today, as a threat to their religious freedom.

Summary of the case

In 2012, two men went to Masterpiece Cakeshop in Denver. Same-sex marriage wasn’t legal in Colorado at that time (they were getting married in Massachusetts), but they wanted a cake for their wedding reception. The baker refused. He said that it wasn’t that they were gay—he would have sold them other products—but a wedding cake required his artistic input, and he couldn’t do that because of his Christian beliefs against same-sex marriage.

The Christian side of the case

The Alliance Defending Freedom (ADF) is the attorney for the baker, and it characterizes the case this way:

When a cake artist declines to design a cake for a Halloween party, the world goes about its business. But if that same cake artist declines a request for a custom cake for a same-sex wedding, he is forced to defend his decision all the way to the United States Supreme Court.

You act like this is surprising. The baker breaks no law (by refusing to serve no protected class of people) when he declines to bake a Halloween cake, but he refuses to serve homosexuals, who are protected by Colorado law, when he declines their wedding cake. When he has a place of public accommodation (like a storefront) in Colorado and refuses to serve someone in a protected class, he breaks the Colorado Anti-Discrimination Act.

The ADF says, “The government does not have the power to force creative professionals like Jack—or anyone for that matter—to celebrate events that violate their faith.”

You don’t want to bake a cake for a same-sex wedding? Then don’t bake wedding cakes. Problem solved—now your faith is no longer violated. But if you provide public accommodation, which in this case means declaring to the public that you will sell custom wedding cakes, you can’t discriminate against protected classes.

The ADF concludes, “[Baker Jack Phillips] has taken a bold stand for his faith—and for religious freedom for all of us.”

Religious freedom for all of us? We all want to be able to discriminate based on our personal religious beliefs? Sorry, laws trump your religious preferences when they conflict.

But the baker doesn’t just refuse the gays

In its brief to the Supreme Court, the ADF notes that the baker doesn’t just have it in for the gays.

Phillips will not design cakes that celebrate Halloween; express anti-family themes (such as a cake glorifying divorce); contain hateful, vulgar, or profane messages (such as a cake disparaging gays and lesbians); or promote atheism, racism, or indecency.

Ah, it’s nice to see that he didn’t forget the atheists.

But let’s go back to the original Colorado law that was broken. It prohibits denying “the full and equal enjoyment of the goods . . . of a place of public accommodation . . . because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” And it sounds like Baker Jack might be okay with most of that. He says he would refuse to create a cake with a hateful message or one that promoted racism, but the excuse that he wants for himself would allow a lot of collateral damage. If Jack can say that his religious beliefs forbid him from making a wedding cake that supports a same-sex wedding, another Christian baker can use the same logic to refuse a cake that supports a mixed-race wedding. In fact, if you think the multi-purpose Bible can’t be used to support a case against any of the protected classes listed in that law, including Jews, Muslims, and African-Americans, you haven’t read enough of the Bible. Worse, there’s no need to invent contrary biblical arguments because the logic behind the argument is irrelevant when religious beliefs are simply whatever someone says they are.

That needs repeating: the argument for discrimination doesn’t have to make sense to you or to anyone. There is no external, objective logic necessary to ground these demands to discriminate when the justification comes from inside people’s heads.

Artistic expression

Note the novel part of this case. The exemption for discrimination isn’t being asked for all businesses, just those that involve “artistic expression.” Artistic expression is speech, and the first amendment protects that as well as religion.

Making a cake is artistic expression, but this claim can apply (potentially) to lots of businesses: florists, nail salons, barbers, tailors, carpenters, plumbers, or destinations for kids’ birthday parties. Maybe even guidance counselors, funeral homes, therapists, or doctors. And once the door is open a bit, other businesses that can’t claim an artistic expression exemption might push for a piece of that sweet, sweet discrimination action.

One response is to say that a business would be fiscally foolish to refuse to serve a class of people, but that’s a weak argument when Masterpiece Cakeshop is already a counterexample. Putting a “We don’t serve your kind here” sign in a window might actually be a plus in some parts of the country. Chick-fil-A, a fast-food restaurant chain, got lots of pushback from its public opposition to same-sex marriage, but it has also gotten support from customers who applauded that action.

Businesses can decide what to sell (so, no, Jewish bakers wouldn’t be forced to sell swastika cakes, Muslim delis wouldn’t be forced to sell alcohol, and newsstands wouldn’t be forced to sell porn), but they can’t decide who to sell it to (with “no shirt, no shoes, no service” kinds of exemptions).

First Amendment rights are important. When the Christian doesn’t have the right to speak freely on religion, I probably don’t, either. But religious freedom doesn’t give you the right to impose your beliefs on others.

For a brief overview, see “Understanding Masterpiece Cakeshop vs. Colorado Civil Rights Commission” by Movement Advancement Project.

For a legal analysis of the case, continue to part 2.

Religion is about having faith beyond what you can know or see,
and yet so many use religion to hate and discriminate
those they don’t know or see.
— Sarah Silverman

Image credit: Open to All