The recent Supreme Court decision that fell on the side of a baker who in 2012 declined to make a wedding cake for a gay couple because of his religious beliefs focused on Colorado’s Civil Rights Commission, whose members Justice Anthony Kennedy said had demonstrated “clear and impermissible hostility” toward religion. “Religious objection was not considered with the neutrality required by the Free Exercise Clause,” the court’s 7-2 decision stated.
With that narrow ruling, the court dodged arguments about discrimination against the LGBTQ community, and it declined to address the issue of compelled speech, raised here by the baker’s argument that he shouldn’t be forced to support an expression with which he disagrees, in this case marriage equality.
Compelled speech — or the enforced expression by an individual — has come before the court in the past. A 1943 decision, for example, ruled that students could not be forced to state the Pledge of Allegiance, while in 2006, in Rumsfeld v. Forum for Academic and Institutional Rights, Chief Justice John Roberts said, “Some of this Court’s leading 1st Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.”
Q. If the right of free speech includes freedom from compelled speech, and freedom of religion includes freedom from compelled religion, do individuals, via their right of free assembly, have a freedom from compelled association? If so, should this right to dissociate with people one dislikes extend to privately owned businesses?
Yes, our Constitutional freedoms of speech, religion and assembly do protect us from compelled speech, religion and association.
Having said that, I think it is important to repeat that neither speech nor association entered into the recent Masterpiece Bakeshop vs. Colorado Civil Rights Commission decision. As our question states, it was rendered on a much narrower issue relating to religion; even that point is questionable and was ably disputed by Justice Ginsburg in her dissent.
There is another big reason why speech and association didn’t apply: Baking a cake is not speech, nor is a customer-business relationship association.
Even this Supreme Court, determined as it was not to rule against baker Jack Phillips, could not declare with a straight face that a word or two written in frosting, or the apparent gender of the little plastic figures on a cake, constitute speech.
Regarding association, while there are limited situations in which a business may decline customers — think “No shoes, no shirt, no service” — sexual orientation is obviously not one of them. Businesses are obliged to serve the public, and being privately owned is neither here nor there.
If Mr. Phillips doesn’t want to deal with that he needs to bake cakes as a hobby and only for people he approves of.
Private ownership is an important principle in Scripture. When God commanded “Thou shat not steal,” it presupposed the owner’s exclusive right to control his possessions. Even with the principle of charitable giving, God gives us the freedom to make the right choice with what belongs to us. The apostle Peter reprimanded a man named Ananias for lying about the amount of the charitable contribution he gave from the sale of his property: “While it remained unsold, did it not remain your own? And after it was sold, was it not under your control?” (Acts 5:4). The property was his, under his exclusive control. This principle extends to how one operates his or her own privately owned business. Owners of private businesses, while they have an obligation before God to be just and loving in their dealings with others, still have the right before him to refrain from engaging in transactions and interactions that are offensive to them. The business is their personal property. I understand that if this freedom is taken to the wrong extent and application it might be misapplied to justify discrimination on racial grounds, with which I definitely disagree. But the case of the Colorado baker was different. He has the right to be free from coercion to violate his religious convictions as he operates his own privately owned business. In an era of great outcry for the rights of individuals and the protection of their personal preferences I would hope that he would receive some tolerance, and even respect for standing on his convictions. Equal rights for all means equal rights for all.
Pastor Jon Barta
I remember being confused, as a child, about the difference between two types of signs we’d sometimes see on shop doors. One said, “No shirt, no shoes, no service” — these signs were often seen around the lake and beach towns of Michigan — and the other type of sign said, “We reserve the right to refuse service to anyone” and were more often seen in and near the Detroit area.
I secretly liked the first kind of sign — as a girl, who was denied the sweet freedom boys had to go shirtless, it seemed a sort of equalizer to me; and besides, it was stating a rule, and children understand rules. The second type of sign sounded mean and overly random, like you could be kicked out at any moment, for little or no reason. And although I was too young to recognize them as an expression of racism, those signs always made me uneasy.
The legal nuances of free speech and compelled association are beyond my ken, but broadly, this issue comes down to the differences between those two signs.
Posting some rules of decorum to be followed in one’s shop — rules which apply to everyone — seems mostly reasonable to me, though I recognize that, like the old establishments requiring customers to wear a jacket and tie, it could create or be used to further economic and other injustices. But to refuse service to various people for random reasons, or no reason, seems patently wrong. If you open up your doors to the public, then the doors should be open to anyone, period. You can throw people out for bad behavior, but you can’t keep them from coming in, or refuse service to them, just because of who they are.
The right to free exercise of religion was never meant to be used as a thin disguise for discrimination against whole classes of people. And not for nothing, but so far as I understand Christianity, Jesus would have not only made the cake, but danced at the wedding.
The Rev. Amy Pringle
St. George’s Episcopal Church
La Cañada Flintridge
This question reminds me of two things: the Soup Nazi from Seinfeld who always said “No soup for you!” and those signs you see in mom-and-pop shops that read “We reserve the right to refuse service to anyone.” I like to think that nobody should be compelled to speak or act against their will, let alone advance a cause with which they have moral or intellectual disagreement, but neither should they themselves discriminate against customers purely for something superficial. If a known child molester came into a store to buy teddy bears, it might be best to show him to the door. Many such examples could be suggested for why a proprietor may not wish to do business with the likes of these, but most would require some personal knowledge.
I was happy to hear that the baker didn’t have to make pastries for a gay wedding when he had such a moral aversion, and it wasn’t just that he had his religious rights preserved, but it was a victory against these whiners who can’t countenance people with whom they disagree so they vow to destroy them. In a civil society, why can’t someone just mosey along down the street to another purveyor without qualms, and positively patronize that establishment, rather than stamp their feet, call a lawyer, and try to destroy another’s livelihood for trying to maintain fidelity to God? Nobody should be forced to give a product, service, allegiance or support to something or someone else with whom they vehemently disagree, but I do think that businesses with something to sell should not discriminate without cause. In the case of the baker, had he known his customers were a gay couple but not there to promote their sexual disposition, he would probably have sold them a cake. But forcing him to procure decorations and craft a specifically contra-Biblical advertisement or he gets his family starved, well, that’s just mean-spirited. Even God doesn’t force anyone to be saved against their will, but neither does he countenance evil doers (and yet he’s always open for business).
Rev. Bryan A. Griem