Commentary: Tolerance, wedding cakes, and a free society

Washington D.C., Dec 7, 2017 / 11:11 am

This week, the Supreme Court heard oral arguments in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. The result of the case, which is expected to be delivered this summer, is likely to have considerable impact on the future of free speech, religious liberty, and free enterprise in the United States.

The case concerns a Christian baker, living and working in Colorado, who refused to make a custom wedding cake for a gay couple who planned to marry in Massachusetts. He offered them any other service his bakery provided, but would not make a wedding cake for a same-sex marriage. He says that to custom create and bake their cake, a kind of creative expression, would be participation in something he finds morally objectionable.

The state of Colorado prohibits discrimination or denial of service based on sexual orientation, even though, at the time, gay marriage was not legal there.

The legal arguments of the case seem to hinge on whether cake-baking is a sufficiently artistic activity to qualify as protected speech. Nevertheless, the basic point which the Supreme Court will settle, one way or another, is whether "I can" also means "you must"  

If, as we so often tell ourselves, we live in a tolerant and pluralistic society, it goes without saying that there will always be people whose ideas or actions we are obliged to tolerate, even as we are unwilling to celebrate them. Justice Kennedy acknowledged this in the decision of Obergefell vs. Hodges.

In this case, the bakery was not refusing to tolerate the couple's wedding, it simply did not wish to participate. The baker did not try to stop the wedding from happening, or condemn it, he just declined to lend his talents to the celebration.

During Tuesday's arguments, Justice Sotomayor raised a line of thought that would be disastrous to the idea of a mutually tolerant society, if it were to become the basis for the Court's decision.

She observed that many US military bases are in relatively isolated parts of the country, many of which are predominantly Christian. This, she said, could mean that homosexual servicemen and women might be subjected to real hardship if they wish to get married and no local bakeries are willing serve their needs. Such an argument reveals the potential implications of a verdict against Masterpiece Cakeshop.

Suppose that rather, than a gay wedding, a servicewoman wants an abortion and there are only Christian doctors in the area. Could a doctor be coerced into aborting the child? Could a doctor be compelled to end a patient's life if voluntary euthanasia becomes a legal right?  Could Christian doctors be compelled to act against their conscience, and barred from practice if they refuse?

Chief Justice Roberts asked if, should the court find against Masterpiece Cakeshop, Catholic adoption agencies could be compelled to place children with same-sex couples. That question was answered in the affirmative ten years ago in the UK;  every Catholic adoption agency in the country closed as a result.

The fact that the baker's case is being heard at all, and that the bakery was sanctioned in the first place, demonstrates the extent to which some civil authorities are prepared employ the coercive power of the state to force a social consensus where none exists, or even needs to exist.

On Tuesday, Justice Sotomayor observed that while "we can't legislate civility and rudeness," we can legislate behavior. This seems to bespeak a view of the law in which ordinary social interaction is fair game for policing.

The argument that the state can, or even should, force individuals to act against conscience so as not to offend the "dignity" of others reflects a sad social outlook. It presupposes that two people with conflicting views cannot possibly coexist, that one must be subjugated to the other, and that it is the state's function to pick the winner.

The state compelling an unwilling baker to make a wedding cake is akin to an adult forcing two children to play together. It is the very essence of overreaching state paternalism.

A free society presumes that people will disagree. But a community thrives when its members learn to freely accommodate each other, and to progress towards true consensus, ideally reflecting truth. Forcing a consensus where none exists only entrenches divisions, and it makes all of us answerable to the state, not each other, for the simple human task of getting along.

Ed Condon is a canon lawyer and legal commentator working in the UK and the United States. On Twitter he is @canonlawyered. His opinions do not necessarily reflect the opinion of Catholic News Agency.