Post-Obergefell Civil Rights: A Tangle or a Knot?

Remember the Hobby Lobby decision last year, where the Supreme Court sided with employers whose religious faith led them to object to the Obamacare mandate that all health insurance policies must offer contraceptive coverage? The authoritarian and conformist left howled with indignation.

Get ready for a lot of sequels in the aftermath of Obergefell. On Friday the Union of Orthodox Jewish Congregations in America issued a very gracious statement about the case that raises the issue:

In the wake of today’s ruling, we now turn to the next critical question for our community, and other traditional faith communities – will American law continue to uphold and embody principles of religious liberty and diversity, and will the laws implementing today’s ruling and other expansions of civil rights for LGBT Americans contain appropriate accommodations and exemptions for institutions and individuals who abide by religious teachings that limit their ability to support same-sex relationships?

Already, several states have struck a balance by incorporating religious liberty protections into their same sex marriage statutes. This approach must continue, for the expansions of civil rights for some Americans must not come at the cost of the civil rights of other Americans.

While there are many responsible voices in the gay community that do not wish to push the matter to the extreme, the problem is that the tangle of our civil rights law that have evolved to address the contingent problems of post-slavery America have already started to raise ominous problems for religious people, and who can doubt that immoderate people will push the matter to the limit.

I wrote about this in my Forbes column almost a year ago in the aftermath of Hobby Lobby, and it is worth posting again now the whole column, “Persecution and the Art of Baking”:

Deep inside today’s Supreme Court opinion in the long-awaited Hobby Lobby case that involves the conflict between religious freedom and Obamacare’s contraception mandate is the caveat that religious freedom cannot be invoked as a shield behind which to engage in illegal discrimination.  Which means that the decision, while a minor nick to Obamacare, provides little or no future guidance to the increasingly harsh clash of individual rights that is now rending the nation asunder.

This conflict can be seen especially in the case of Jack Phillips and his Masterpiece Cakeshop in Lakewood, Colorado, and its current disposition should be sobering to all friends of a free society, not to mention a genuinely tolerant one.  The conflicts between religious liberty, freedom of association, and equality that have existed in a state of simmering ambiguity for more than a century may have finally reached a breaking point.

In 2012 Phillips declined to make a custom wedding cake for a gay couple, Charlie Craig and David Mullins, because of his religious views against same-sex marriage, though, it should be noted, he did not refuse to provide any other baked goods for the couple’s ceremony.  Further, gay marriage was not yet legal in Colorado at that point.  (Craig and Mullins were planning a Colorado celebration of their marriage in Massachusetts.)

Craig and Mullins brought a discrimination complaint against Phillips with the Colorado Civil Rights Commission, and the ACLU and Colorado’s attorney general piled on the bandwagon.  An administrative law judge sided with Craig and Mullins against Phillips, and in late May the Colorado Civil Rights Commission further ordered that Phillips and his employees be sent to re-education camp—make that “sensitivity training”—to make sure Masterpiece Cakeshop never violates gay rights again.

This case appears to be another in a long line of contrived cases (there’s a very similar case unfolding in the same way in Oregon, along with the New Mexico case involving a photographer who refused to shoot a gay wedding ceremony), stretching back at least to Plessy v. Ferguson in 1896, intended to expand the reach of civil rights law.  How did Craig and Mullins come to select this particular Colorado bakery for a wedding cake, and are there not other bakeries that would gladly supply them with a wedding cake?  It is not as though the baking trade is a narrow, uncompetitive oligopoly or a government-sanctioned monopoly like public transportation.  Why would you want to buy a cake (or any custom product) from someone who doesn’t want to make it for you?  I wonder how Craig and Phillips might fare if they’d requested a wedding cake from a Muslim-owned bakery, or whether the Colorado Civil Rights Commission would have required Muslims to attend “sensitivity training” re-education camps.  Today’s multicultural orthodoxy suggests the obvious answer.

Beyond the facts of this particular legal case, or alternate market-oriented remedies such as an organized boycott of Masterpiece Bakeshop or rival gay-friendly bakeries who see a business opportunity, there is the fundamental clash of basic American liberties that we have papered over for a long time.  On the one hand, the First Amendment guarantees religious liberty and freedom of association, the latter implying a right not to associate with someone if you don’t wish to.  Likewise, the idea of private property implies among its traits the right to exclude people or uses from your property.  On the other hand, we have the 14th Amendment’s mandate for the “equal protection of the law,” along with the general principles of American politics about equality and equal individual rights.

The legacy of slavery and race-based discrimination has led us to make compromises that limit the scope of some fundamental freedoms.  The Supreme Court ruled way back during Reconstruction that property ceases to be wholly private when it is used in certain kinds of commerce, especially public conveyances such as transportation, hotels, and restaurants—though restaurants are still allowed to discriminate against the shirtless, the shoeless, and the smelly, showing that we haven’t lost our ability to make any rational discriminations about “discrimination.”

The historical injustice of slavery and its successor, Jim Crow segregation under the Democratic Party, provides a powerful contingent rationale for blurring the pure straight lines of individual liberty, freedom of association, and robust property rights, though the fact that we have justified most of our modern civil rights laws as regulations of commerce under the Commerce Clause, rather than under a categorical moral condemnation of racial classification, should alert us to the defects and contradictions of our social-legal regime.  The apotheosis of this halfway house of moral-political reasoning was the Civil Rights Act of 1964 and the Supreme Court cases that validated it as commercial regulation rather than a postulate of moral principle, though the legal language has always been tangled and confusing.  The point is, we have been willing to tolerate some degree of government coercion of private behavior to remediate the original state-sanctioned coercion of slavery and its aftermath.  But this tenuous compromise of principle has led to the gradual corruption of civil rights.

Today “discrimination” has been steadily expanded by every other claimant or group with a grievance.  Every possible social asymmetry is claimed to be a fundamental “civil rights” issue, requiring similar extensions of government coercion.  A few simple hypotheticals show the irresolvable legal and political thicket we are creating.  What if Mr. Phillips agreed to bake the cake for the gay couple, but insisted on including a statement, made out in frosting, about his religious objection to homosexuality?  Wouldn’t prohibiting him from doing so infringe his right to free expression?  Would a Jewish or African-American bake shop be required to supply a cake to a White supremacist group? Actually, a KKK chapter in Georgia won a complaint against a bakery last year.  (Correction: This story turns out to be an Onion-like hoax, though it was widely picked up and spread elsewhere by other news sites.  Like all good satire, who doubts that it could come to pass?)

Jack Phillips has responded to the state sanctions against his religious belief by deciding to discontinue making wedding cakes for any customer.  Is this the kind of outcome Rosa Parks and Martin Luther King Jr. had in mind?

My prediction is that the old tangles of civil rights law is going to become a tight knot in the next few years.

JOHN adds: All true. And when, as now seems inevitable, the federal courts declare a fundamental constitutional right to practice polygamy with state support, it won’t be just a few religious outliers who will have to attend re-education camps.