The U.S. Supreme Court heard oral arguments in December 2017
in a case on whether a baker in Colorado had been justified in refusing to sell
a wedding cake to a same-sex couple. He claimed that his Christian faith forbid
him from making wedding cakes for gay couples. “I follow Jesus Christ,” he
declared when interviewed at his store. The Gospels are silent on the issue of
homosexuality—it being said to be a sin only in the Old Testament—so the
inference that following Jesus requires opposition to gay marriage (not to
mention that homosexuality is an important issue in following Jesus) can be
questioned. If the inference is tenuous, then it is the baker’s ideological stance that was actually at
issue before the court. More broadly, is religion vulnerable to acting as a
subterfuge, or cover, for what are really personal prejudices?
In terms of constitutional law, the baker contended that the
First Amendment, “whose guarantees of free speech and religious exercise
supersede any state law, exempts him from [Colorado’s] antidiscrimination act,”
which has covered sexual orientation since 2007.[1]
The question, I submit, is whether free speech and religious exercise are
salient in a business context. Colorado was not contesting the baker’s freedom
to speak out against gay marriage and engage in religious worship (i.e.,
expression) on his own time; the problem is the baker’s assumption that
political speeches and religious practice apply directly in business. To claim that decorating a cake—and artistic
expression more generally—is free speech over-applies the constitutional doctrine
and ignores the fact that a product to be sold is being produced.
Moreover, the domain of business can be distinguished from
both the political and religious domains. Even though they may be related, each
has its most salient attributes, customs, and laws. In opening a business to
serve the public, serving customers trumps making political or religious
statements or decisions at the expense of customers. Put another way, in
opening doors to serve the public, political and religious differences cannot
justify refusing some of the public; the responsibility in serving the public
thus supersedes circumscribing service based on personal political and religious prejudices.
“’No one disputes that [the baker] is ‘a man of deep religious
faith whose beliefs guide his work, or that the Free Speech Clause protects his
right to give voice to those beliefs,’ Colorado’s brief argues. ‘But when a
business opens its doors to the public, a state may require that [the business]
serve customers on equal terms, regardless of their race, sex, faith, or sexual
orientation.”[2]
The baker’s religious faith is most salient in the religious domain (e.g., at
church), while serving the public is most salient in business. That which is foremost
in one domain cannot legitimately claim such a status in another domain, even
over its foremost customs and laws. In assuming that his business was a place
for free speech and expression of his religious faith at the expense of serving
the public, the baker misconstrued the distinct nature of business. In being
open to the public, a business takes on an obligation to be open to the public
rather than a part thereof based on religious grounds, especially if the
religiosity is mere cover for what is actually a personal prejudice. Overstating the importance or status of minor
factors even over major ones in a given domain applies also in giving priority
to an Old Testament dictum in what it means to follow Jesus Christ. In
Christianity, as distinct from Judaism, the New Testament is more important than
the Old Testament. The baker seems to have overlooked the main point in the New
Testament: self-giving love towards others, especially when it is inconvenient
(i.e., even toward enemies).
