Tuesday, December 5, 2017

The Supreme Court: Let's Bake a Cake

David Brooks has a good column today about baking wedding cakes. As you know the issue is in the news because the case of Charlie Craig and David Mullins vs. Jack Phillips is being heard by the Supreme Court today.

Brooks supports same-sex marriage, fervently, so that is not the issue. Given the Supreme Court decision in Obergefell v. Hodges, it is the law of the land. Justice Kennedy’s reasoning has often been mocked, and rightly so, for being psychobabble. Same sex marriage is the law of the land because Kennedy decided that:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.

Led by Chief Justice Roberts and Justice Scalia dissenters declared that social policy should not be made by nine unelected judges, all of whom had elite educations and all of whom, at the time, came from the same two law schools and from coastal America.

For our purposes, the philosophical concept that you have the freedom to define and express your identity is patent nonsense. Wishing does not make it so and you do not change your identity by changing your self-definition. From this concept one might conclude that  you can decide, tomorrow, to change genders and you must be recognized as such… biological reality being irrelevant.

Be that as it may, the law is the law and same sex marriage is the law of land.

Today’s issue concerns baking a wedding cake. Apparently, not just an ordinary cake, but one that would have been custom designed to convey a specific message. One wonders whether a Muslim bakery would be required to bake a cake for a Bar Mitzvah.

The happy couple wanted Phillips to do it. Phillips said he could not. Brooks picks up the story:

Five years ago, Charlie Craig and David Mullins walked into a bakery in a strip mall in Lakewood, Colo., to ask about a cake for their wedding. The baker, Jack Phillips, replied: “I’ll make you birthday cakes, shower cakes, cookies, brownies. I just can’t make a cake for a same-sex wedding.”

As Adam Liptak of The Times reported, Phillips is a Christian and believes that the Bible teaches that marriage is between a man and a woman. Phillips is not trying to restrict gay marriage or gay rights; he’s simply asking not to be forced to take part.

Craig and Mullins were understandably upset. As Mullins told Liptak, “We were mortified and just felt degraded.” Nobody likes to be refused service just because of who they essentially are. In a just society people are not discriminated against because of their sexual orientation.

As for who anyone essentially is, the freedom, discovered by Justice Kennedy, to define your identity suggests that who you essentially are is mutable. Which makes it a lot less essential. Moreover, who you are ought not to be defined by your sexual orientation, by whom you find sexually attractive or by what sex acts you find most gratifying. If we are doing business, I need to know whether or not I can trust you. I do not need to know and do not want to know what you and your beloved did between the sheets last night.

Excuse the philosophical diversion, but defining who you really are according to your sexual propensities and proclivities is a sign of cultural decadence.

Brooks begins with a salient point. Whether or not  you have this or that cake at your wedding does not prevent you from getting married:

First, it’s just a cake. It’s not like they were being denied a home or a job, or a wedding. A cake looks good in magazines, but it’s not an important thing in a marriage.

More importantly, he raises an issue that George Will raised in a recent Washington Post column. The way the loving married couple reacted. They did not react by being neighborly or by extending an hand of friendship to someone they felt did not understand them.

Brooks recommended that course:

Given that context, the neighborly approach would be to say: “Fine, we won’t compel you to do something you believe violates your sacred principles. But we would like to hire you to bake other cakes for us. We would like to invite you into our home for dinner and bake with you, so you can see our marital love, and so we can understand your values. You still may not agree with us, after all this, but at least we’ll understand each other better and we can live more fully in our community.”

Instead they took the case to court, the better to punish Jack Phillips for what he considered to be his religious beliefs:

The legal course, by contrast, was to take the problem out of the neighborhood and throw it into the court system. The legal course has some advantages. You can use state power, ultimately the barrel of a gun, to compel people to do what you think is right. There are clearly many cases in which the legal course is the right response (Brown v. Board of Education).

Brooks arrives at the most important point. Making this a federal case has certain disadvantages… not least of which, it makes the loving couple look vindictive and intolerant. And it mobilizes the power of the state to coerce someone to do what the state wants them to do.

But the legal course has some disadvantages. It is inherently adversarial. It takes what could be a conversation and turns it into a confrontation. It is dehumanizing. It ends persuasion and relies on the threat of state coercion. It is elitist. It takes a situation that could be addressed concretely on the ground and throws it up, as this one now has been, to the Supreme Court, where it will be decided by a group of Harvard and Yale law grads.

If the loving couple were as secure as they say they are in their belief in the value of their conjugal union, why are they insisting that someone who does not accept it be punished by the law? After all, until a decade or two ago same-sex marriage did not exist… anywhere at any time. It is a brand new human institution. 

Anyway, Brooks notes that taking it into the courts makes the issue adversarial and antagonistic. It divides the nation and produces disrespect for the litigants:

This is modern America, so of course Craig and Mullins took the legal route. If you want to know why we have such a polarized, angry and bitter society, one reason is we take every disagreement that could be addressed in conversation and community and we turn it into a lawsuit. We take every morally supple situation and we hand it over to the legal priesthood, which by necessity is a system of technocratic rationalism, strained slippery-slope analogies and implied coercion.

He concludes:

I don’t think the fabric of this country will be repaired through the angry confrontation of lawyers. In this specific situation, the complex art of neighborliness is our best way forward.


Sam L. said...

How many cake shops were there where they live? Got to be more than one. They shoulda got on their high horse and rode to the next one. But, NOOOOOOOOOOOOOOOOOOOOOOOOOOOOO!
They had to make a federal case of it.

Jack Fisher said...

This is the key to the problem. Cake shops don't provide essential services the equivalent of fire, police, schools, nor is this bakery the only local source of wedding cakes. Nor do gheysters have the equivalent of immutable characteristics like race or sex.

No constitutional right is absolute, and each must be balanced against competing individual rights (here, another first amendment right) or state interests (ensuring equal treatment of all citizens). I think the cakers rights trump the others, so the 'mo couple should have to sashay their way to another bakery.

Ares Olympus said...

Yes, I absolutely agree, the courts are the absolute worst way to handle this. You might win, but you still lose because it divides the country.

It almost seems like we need a lawyer-sanctioned script on "How to say something to avoid getting sued." Of course no script is perfect, but a good one might contain some sympathy for the customer, and ask for some sympathy in return.

Like "Please don't ask me to bake this cake for your wedding. I don't mean any disrespect to you or your family and friends, but this threatens my sense of what marriage is by my religion which is between a man and a woman. If you demand me to bake you this cake, I will, since the SCOTUS demands I respect you as equal, but please consider finding another baker who is interested in supporting you. Joe's Cakes down the street has promised me he'll take your business, and I highly recommend his artistry and wholesome organic ingredient."

I'm sure someone could write something better, but that seems to be a useful approach.

Of course this only applies for owners. If Joe's Cakes hires you to decorate cakes, and you want to decline one case for religious reasons, and if Joe can't find another employee to take your place, he has the right to fire you, and replace you with someone who will do the job they are hired to do. (This is similar to the issue of Muslim taxi drivers who don't want to carry intoxicated passengers.)

Kansas Scout said...

Nice post. I changed my mind on this after some reflection. It's wrong to force someone to violate their moral values for someone else's convenience. They could easily have gone somewhere else. They are vindictive. I believe they chose this baker because they knew he was a Christian with traditional values.
This approach is a grave error for gays to take. This kind of thing only creates backlash.

JPL17 said...

Unfortunately for the Left (but fortunately for all sane people), by the time the Left realizes that Obama's gay / transgender cram-down on the country was a huge political mistake, it will be 2028, a relatively weak President Pence will be running for re-election, and this time there won't be a moderate Democrat governor left in the country to credibly challenge him -- because by then there won't be any moderate Democrats, period. They're currently evolving themselves into non-existence.

Jack Fisher said...

Kansas Scout, so you're happy with the rule that permits, "I will not serve ______ because of my deeply held religious/moral convictions"?

JPL17 said...

Jack Fisher: So you see no difference between refusing to serve someone because you believe they're committing a sin, vs. refusing to participate in a ceremony because you believe you'd be committing a sin by participating? To the religious mind, there's a huge difference between the two.

Jack Fisher said...

@JPL17. then evaluate this reason: "I will not serve Black people because of my deeply held religious/moral convictions". Unless you actually want courts deciding what are valid religious convictions and what aren't, but that's a road you don't want to take.

To a more nuanced religious mind, faced with the civil obligation to do something abhorrent to one's faith like contracting with gaysters*, the options are either, refuse and accept the consequences or get out of the business of serving the public. As you put it, do anything else and you're committing a sin.

* assuming the USSC adopts a position other than that stated in my prior comment at December 5, 2017 at 9:41 AM

JPL17 said...

Jack Fisher: Your analogy to someone who refuses to serve a black person simply because he's black is ridiculous. The cake baker in the Colorado case had no objection whatsoever to baking cakes for gay customers. In fact he did so all the time. His sole objection was to having to participate in a gay wedding ceremony, which participation he believed would be sinful.

Oh, and your proposed solution to the baker's dilemma -- i.e., to "get out of the business of serving the public" -- is nothing but anti-religious extremism. All careers force one to make moral and religious choices from time to time, and if the law made no accommodation for religious belief (as you apparently favor), then no one could faithfully practice religion and maintain a job.

Jack Fisher said...

I'm asking you to reason out your position. The idea that Blacks weren't served because of personal preferences sometimes masking as religious beliefs is not "ridiculous" because this shi'ite happened.

Obey your conscience and accept the consequences or avoid the occasion of sin is a Christian, even protestant ideal. If the USSC says they must serve gays, then their options to avoid sinning are not to serve and get fined or jailed (a kind of martyrdom, also a Christian and protestant concept) or not do business. No one said these were easy choices and that's kind of the point.

While I prefer the USSC rule for the bakers on the grounds I spoke of earlier, if they don't then your bakers don't have much of a choice, and while you can complain about it on an internet board, that doesn't help anyone.

I'm an orthodox Christian first and criminal defense trial lawyer second and I make ethical decisions on who I'm going to represent and what kinds of defenses I'll raise all the time. I've told criminal RICO targets and federal judges "no" on representation and I'd quit this business tomorrow if I couldn't exercise freedom of conscience.

Yeah, all professions require ethical choices, and I'm sure I know what side you'd come down on.


Ares Olympus said...

Jack Fisher: Obey your conscience and accept the consequences is a Christian ideal.

This would seem to be an ideal for probably any religion, even Libertarians!

But Brooks central message is that self-righteous conviction is not enough. Conscience may trigger a moral predicament, but doesn't force specific actions or attitudes that risk demeaning the needs of others.

You can show respect people you disagree with, even when they don't "deserve" it. Conscience can teach that as well. "Hate the sin, lover the sinner" might seem like progress, but it still would seem to fail to acknowledge the four pointing back at you when you point one outward. So people most disconnected from their own conscience may be the quickest to accuse others of wrong doing.

I don't know what narcissism is, but it looks the opposite of conscience or responsibility, a prideful attitude that directs responsibility of one's own negative feelings onto others. It's saying "I'm a good person, but when I'm not, it's because other people make me act this way to defend myself."

Respect or disrespect are still words that confuses me and I don't think it can really mean what people often want it to mean.

WaltC said...

Actually, the baker did "accept the consequences;" he stopped baking wedding cakes for anyone at all in order to avoid the charge of discrimination and, according to news reports, thereby lost 40% of his business....The litigants, however, do not "accept the consequences" of choosing a lifestyle that they know may offend a small % of the public with religious convictions. And as long as the law or the custom of the state doesn't bar them from bakeries or generally decree "Don't let em eat cake," they should've shrugged and moved on.

Forcing the issue Is simply an exercise in power and revenge--childish and churlish. The litigants claim, and two justices agreed, that the baker's refusal assaulted their "dignity" (dignity is now a new constitutional right) and tell us that it made them both "burst into tears." (Anything making anyone burst into tears should be against the law.)

The best statement to come out of this came from Justice Kennedy who reminded the litigants and the state of Colorado that tolerance itself is a two-way street.

Disclaimer: their marriage does not offend me though it might bemuse me and if I were a baker I'd've baked the damn cake.

Anonymous said...

AO’s insight is remarkable. Now one cannot not do something? Your view of the world is terrifying.

WaltC said...

Anonymous: was that "your view is terrifying" directed at my comment? You do realize that my second paragraph was sarcastic. I don't think the baker should be forced to bake or that the state should force anyone to violate his conscience--a premise the government has long accepted when it comes to conscientious objectors and the army. And if it wasn't directed at me, um, "Never mind."

Anonymous said...

No, I was speaking about AO’s post