Listening to the oral argument before the Supreme Court in the wedding cake case, it struck me how artificial the discussion was. Much of it centered on whether and under what circumstances cakes are speech. Bizarre.
I don’t blame the advocates or the current Justices for the content of the argument. They must be mindful of Supreme Court precedents whether or not, as a practical matter, they fit this case well.
But the wedding cake case isn’t really about free speech. It is about free exercise of religious conscience. After all, the Colorado baker refused to create a custom cake for the gay couple because doing so is incompatible with the dictates of his religion.
To be more specific, I think the case is about balancing freedom of religious conscience against the rights of gays who want the kind of marriage ceremonies non-gay couples frequently enjoy. I suggested so in this post from a couple of years ago. Ross Douthat made basically the same argument in yesterday’s New York Times.
In my view, the best way to perform this balancing is through the concept of reasonable accommodation. The concept comes from Title VII of the Civil Rights Act of 1964, which makes it unlawful discrimination not to accommodate the sincerely held religious beliefs and practices of employees unless accommodating them would result in “undue hardship” to the employer.
Thus, for example, in the absence of “undue hardship” to the employer, a Jew whose religion requires him not to work during multiple days in September-October must be given those days off and a strict Sabbath observer must be granted relief from shifts that interfere with observance.
An absolute requirement that bakers create custom made wedding cakes for gay couples in violation of their religious conscience violates the principle of reasonable accommodation. It requires the baker (or photographer or caterer) to choose between adhering to his religious belief and making a living in his chosen profession.
A decent respect for the First Amendment should lead courts to reject this outcome when it is possible to do and still uphold fairness for gays and gay couples. If questions like the one that arises in the Colorado wedding cake case are to be anything other than a raw power struggle, they should be resolved based on balancing the competing equities that arise from religious freedom and gay rights. The concepts of reasonable accommodation and undue hardship provide the best framework for such balancing.
In most cases, no undue hardship will attach if a gay couple has to use a baker or a wedding photographer who doesn’t think the ceremony violates God’s will. Freedom of religious conscience will be accommodated and the couple will get cakes and photographs of the same or better quality.