Religion, Wedding Cakes, and Same-Sex Marriage

In 2018, the Supreme Court allowed the Masterpiece Cakeshop to refuse on religious grounds to bake a wedding cake for a same-sex couple. But the decision was made on technical grounds, so the underlying issue remains. Whose rights should be respected in our laws, the rights of same-sex couples to equal treatment, or the rights of religious people to avoid actions that conflict with their religious beliefs?

Advocates for same-sex couples worry that if a cake maker can refuse service to a same-sex couple, the LGBTQ community will suffer the same humiliations as blacks suffered, especially in the South during the Jim Crow era, when blacks couldn’t eat at most restaurants and were denied many jobs in the private sector due simply to their race. Black lives were constrained until protests engendered legislation and constitutional protection against such discrimination. Allowing private businesses that serve the public to similarly deny services to same-sex couples, whatever the grounds, may open the door to pervasive, degrading treatment of LGBTQ members in the public square, which violates their constitutional rights.

On the other hand, the cake maker claims that requiring him to make a wedding cake for a same-sex couple violates his First Amendment rights. He has a religious objection to validating same-sex weddings with his cake-making art (which he considers a form of speech) because he opposes same-sex marriage on religious grounds.

We generally take religious scruples very seriously in the United States. The First Amendment to the Constitution protects “the free exercise” of religion. When there was a military draft of young men, those with religious or similar grounds to be consistent pacifists were exempt from military service even during wartime. The federal government is currently imploring all those eligible to get vaccinated against Covid-19, but no official suggests compelling people who refuse on religious grounds, even if others are required to comply.

Many religious people worry about the trend toward secularism in our society. Church and synagogue membership and attendance has declined in most denominations in recent decades, and an increasing percentage of young people don’t identify with any religious group. Just as members of the LGBTQ community worry about Jim Crow for gays, some religious thinkers worry that religious people are becoming a beleaguered minority. In his dissent from the 2015 Supreme Court decision which declared same-sex marriage a constitutional right, Justice Samuel Alito expressed this fear. “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.” He worries that “in certain quarters, religious liberty is fast becoming a disfavored right.”

The other side worries about the opposite extreme – religious people increasingly winning Supreme Court cases that enable them to impose their views of morality on the rest of society. In Burwell v. Hobby Lobby Stores (2014), the Court accepted a “closely held” corporation’s religious objections as sufficient grounds for excusing it from compliance with the Affordable Care Act’s (ACA’s) mandate that employers include contraceptives in their medical coverage.

Although I disagree completely with the Court’s reasoning that the ACA requirement constitutes an undue burden on the religious freedom of the Hobby Lobby’s owners, I have to acknowledge that the Court’s decision doesn’t really burden Hobby Lobby’s employees. No employees are even inconvenienced, much less denied the insurance coverage for contraceptives due under the ACA, as an insurance company provides this coverage free of charge. Equally, the same-sex couple denied service by the Masterpiece Cake Shop had no trouble finding a cake maker who was glad to make a wedding cake for them.

So why all the fuss? As is common where social issues are concerned in the United States, the wedding cake and contraceptive controversies are so heated because Americans insist on winner-take-all rights rather than on accommodations that give everyone what they really need. This is the thesis of Jamal Greene’s recent book, How Rights Went Wrong: Why Our Obsession with Rights is Tearing America Apart, which he applies especially to controversies about gun controls. Andrew Koppelman’s Gay Rights vs. Religious Liberty: The Unnecessary Conflict contains a similar message of tolerance, advocating “a regime in which it’s safe to be gay” and also “safe for religious dissenters.” In many conflicts, both sides can be accommodated. Hobby Lobby employees have their insurance and the gay couple their wedding cake.

This doesn’t apply to a government official refusing to certify a same-sex marriage, or to a druggist who refuses to fill a prescription for emergency contraceptives, because in these cases the burden on constitutional rights is huge. Real burdens must be lifted. But where the burden is only theoretical, ideological, or paranoiac, we should avoid conflicts through accommodation.

You can respond by e-mail at wenz.peter@uis.edu.