Pluralism, accommodation at core of cake case

On Dec. 5, the U.S. Supreme Court heard oral arguments in the case Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case involves a Denver cakeshop owner, Jack Phillips, who is Christian and who refused in 2012 to make a custom wedding cake for a same-sex couple. Richard W. Garnett, a law professor at the University of Notre Dame, spoke with Our Sunday Visitor about the tensions between prevailing public views, religious freedom and civil rights at the heart of this case, which explores whether creative businesses can refuse certain services due to their First Amendment rights of free speech and free exercise of religion.

Our Sunday Visitor: Why does this case matter? 


Richard W. Garnett: The significance of this case in my view has less to do with legal doctrine or real-world litigation and more to do with the future of toleration. It’s a big question in a lot of contexts whether legal culture and popular culture are going to kind of tolerate people with traditional views on the family and marriage and sexuality. Or will those traditional views become the equivalent of the racist views in the past? I think that’s genuinely in play. If you read the briefs in the case, that’s how Justice Kennedy framed it: Tolerance is a two-way street. There have been some big victories in law and in the popular culture for the LGBT rights cause, but ... it’s not going to happen that every person in America with traditional views on these matters is going to suddenly change his or her mind overnight, and so are those folks going to be told, well you can no longer operate in the commercial sphere, you can no longer get counseling licenses, you can no longer get law licenses. How heavy-handed are the folks who appear to be the victors in this cultural battle, how heavy handed are they going to be in dealing with those who dissent? The case is kind of a clue about that. 

OSV: What does it say about the state of culture?

Garnett: This isn’t the case where somebody is being denied access to services in the marketplace or to housing or to employment. It’s really just a case of disagreement about a moral question. As I see it, the significance of the Masterpiece Cakeshop case — and the significance of the reactions to it — are going to have to do with whether the views of people like Mr. Phillips, which are widely held, are going to be labeled as beyond the pale, as outrageously bigoted and so on.  

OSV: This case has been described as one of civil rights by some. Is this accurate?

Garnett: It is, but the important thing to realize it that there are rights on both sides. So the state has public accommodations laws, civil rights laws, that are designed to make sure that the sphere of commerce and public accommodations isn’t distorted by discrimination. On the other hand, Mr. Phillips is invoking two fundamental human rights that are set down in the First Amendment of the U.S. Constitution. So there certainly are civil and human rights involved in this case, but it’s really important to remember that they’re being invoked by both sides.  

OSV: Is there a way forward for both sides?

Garnett: I think it’s possible to come up with a legal regime that makes sure that everybody has access to goods and services in the commercial sphere while still allowing for rare and narrow accommodations that respect people’s religious and conscientious views. Some people have said, well, if Jack Phillips wins then all of a sudden, tens of thousands of businesses will start discriminating in all kinds of ways. There’s no evidence to support that claim. But it does appear to be the case, in this particular context of the celebration of marriages, that some people who are involved in creative wedding services have sincere reservations about participating. And whether one agrees with these people or not, there’s no chance that they are going to prevent people from getting the goods and services that they want. And so the choice it seems to me for the law is one can make a statement and brand people with these views as intolerant and not to be tolerated, ironically, or one can find a live and let live solution which probably in 99 percent of cases will work just fine. 

OSV: Where is the country right now where religious liberty is concerned?

Garnett: One risk to religious freedom right now is that if the cause of religious freedom is identified in the popular mind, especially in the mind of young people, with discrimination, fairly or unfairly, that’s going to reduce the appeal of religious freedom. That will make it more vulnerable. Another related problem is that as conventional religious affiliation goes down you’ll have more and more people who see religious freedom as being something that other people care about but doesn’t affect them. And when you’re talking about human rights, that’s dangerous, because religious freedom is a human right for everybody. And everybody, whether they’re religious or not, benefits from living under laws that respect religious freedom because, if you think about it, what religious freedom means is that the government admits that it’s not all powerful. The government admits there’s something bigger than the government. And it seems to me whether one’s religious or not, it benefits you, it gives you more security, to live in a context where the government’s willing to say, “look, we get it, we’re not everything.”

Another challenge, frankly, is that on the, for lack of a better word, conservative side, it appears that there are sometimes people who claim to support religious freedom but only support it for themselves or their co-religionists. Being for religious freedom means you have to be for religious freedom for everybody. So if you support, say, Jack Phillips and the Masterpiece Cakeshop litigation, you should also support the Muslim prisoner who wants to grow a beard or the Muslim congregation that wants to build a mosque.

OSV: What else is important to keep in mind when cases like this one flare up in the news?

Garnett: It strikes me that this case is a reminder that for most people who are people of religious faith, their religion isn’t something that’s limited to bedtime prayers or what they do on the sabbath in a particular kind of structure. For many people who are of religious faith, religion is something that affects and animates their lives, and I don’t think we want to say that in order to gain admission to the realm of business or professional life or commercial life that you have to check your faith at the door. I don’t think we should say to Jack Phillips that the price of admission to being a creative baker is that you agree to give up all of your convictions.

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Of course you can’t always accommodate everybody, and in a pluralistic society sometimes people disagree and there are winners and losers and so on, but my view has been that to the extent it’s possible to accommodate religious dissenters and objectors, we should try to, and we shouldn’t make it the price of admission to the professions or to a certain kind of job ... that you agree to privatize your beliefs. You should be able to be a whole person, whether you’re worshipping with your congregation on the Sabbath or whether you’re at your place of work doing your job. 

Gretchen R. Crowe is editor-in-chief of OSV Newsweekly. Follow her on Twitter @GretchenOSV.