June 28, 2018
When is a cake not a cake? When it becomes a matter of conscience or freedom of religion. The refusal of a Colorado baker to make (or create) a cake for a same sex marriage does not rise to that level. But even if it did, that does not outweigh the compassion and respect due others who, in the exercise of their civil rights, ask for a service or product that in no rational way could be viewed as an endorsement or approval of the marriage.
If so, a livery service could refuse to provide a limousine, a jeweler, the wedding ring, a hall owner, space for a reception, a florist, flowers, and a caterer, food for the reception. After all, the selling of ancillary goods or services is not a validation of the marriage, nor does it rise to the level of participation or attendance.
Taken to its logical conclusion, if such behavior were deemed constitutional, a religiously or conscientiously motivated merchant could ask prospective customers if they are married, or whom they are planning to marry. Frankly, it’s none of the merchant’s business. I am disappointed that the US Supreme Court did not confront this case directly. Instead, the justices sent it back to the Colorado Civil Rights Commission, which initially had ruled against the baker because some on the high court believed the commission overlooked the possibility that the baker’s religious objection was sincere. Under these circumstances, the fact that it may have been sincere should not have mattered.
What if the baker didn’t know it was a same-sex marriage until he delivered the cake to the reception? Would he have the right to take it back? If the cake was for the child of a same-sex couple, could he refuse to bake it? When does the sincere religious belief “love thy neighbor” kick in?
The line should be quite clear in such cases. If you are not actually participating in an action contrary to a sincere religious belief, you cannot refuse on the grounds that you would be violating your conscience.
The gay couple could have gone elsewhere for a cake, and given growing acceptance, objections like those of the baker would have ended. Time, tolerance, and profit would eventually enlighten an unreasonably sensitive conscience. Like principle, conscience can sometimes be used to justify actions that do not warrant attention. Such high standards should apply (a) to matters of consequence (b) apart from feelings of personal animosity (c) when the person asserting conscience has something to lose, and (d) after considering the effects of that assertion on others. The baker’s case fails the first test.
The court ducked the question by referring it back, probably believing the Colorado commission would likely again find for the gay couple. In any event, it will be back before the justices in some form. The line between religious/conscientious beliefs and protected civil rights will eventually be drawn. In my opinion, the wedding cake case is a no-brainer. The harder task will be to define when participation becomes approval. In the immortal words of Rory, who was discussing this matter over a Guinness last week at the Erie Pub: “Hey, man, it’s a cake!” Enough said.
James W. Dolan is a retired Dorchester District Court judge who now practices law.