Justice Antonin Scalia has noted how normal legal rules have been inexplicably distorted or even ignored in order to protect the U.S. Supreme Court’s indefensible decision on abortion. This “abortion distortion” has led the court to uphold restrictions on how ordinary citizens may protest at clinics that would have been unthinkable for anti-war or other protests. Perhaps the court senses the weakness of its position and is thus willing to go to special lengths to insulate it from criticism.
Something similar is going on in some courts over the newest legal revolution against traditional moral standards.
Just last week, the Colorado Court of Appeals affirmed the decision of an administrative agency to punish a Christian baker for declining to create a wedding cake for a same-sex wedding. The opinion is full of fascinating legal contortions.
For instance, the crux of the court’s opinion is that the baker should not be able to distinguish between the status of the men requesting the cake and their conduct. In other words, he had argued that he was willing to serve any person who came into his business regardless of “sexual orientation” but was just not willing to facilitate conduct (the same-sex marriage) to which he conscientiously objected. The court would not allow this, saying that the status and conduct are too tied up together. (Of course, they overreached even there since two men or two women could marry one another under the law regardless of the attraction they feel towards one another, such as for tax purposes.)
Think of the implications of that logic. It would stagger belief to say that a religious nurse who did not want to participate in an abortion (a decision protected by the law) because she believed taking an unborn life was wrong was engaged in sex discrimination since only women can have abortions. But this is precisely what the court is saying when it says: “discrimination on the basis of one’s opposition to same-sex marriage is discrimination on the basis of sexual orientation.”
The court itself engages in the exact kind of distinction it decries in the baker, insisting it is not punishing him for his Christian faith, only for acting on that faith.
The logical gymnastics get worse, though. At one point, the court feels it must distinguish a previous case. In the first, the administrative agency found that a bakery “did not discriminate against a Christian patron on the basis of his creed when it refused his requests to create two bible-shaped cakes inscribed with derogatory messages about gays, including ‘Homosexuality is a detestable sin. Leviticus 18:2.’” At first glance, that sounds about exactly what the baker has done here—decline to create a cake whose message (support for same-sex marriage) he disagrees with.
Here’s how the court gets around this case:
The Division found that the bakeries did not refuse the patron’s request because of his creed, but rather because of the offensive nature of the requested message. Importantly, there was no evidence that the bakeries based their decisions on the patron’s religion, and evidence had established that all three regularly created cakes with Christian themes. Conversely, Masterpiece admits that its decision to refuse Craig’s and Mullins’ requested wedding cake was because of its opposition to same-sex marriage which, based on Supreme Court precedent, we conclude is tantamount to discrimination on the basis of sexual orientation.
But this is precisely what the baker in this case had shown — that he was willing to serve gay and lesbian customers, stopping short only of participating in sharing a message with which he could not agree. For the bakery that didn’t want to include a Bible verse on a cake, that conviction was enough to insulate them from liability, but the precisely opposite result obtained for the baker who engaged in the precisely same conduct but had the opposite viewpoint.
When the operative difference in legal treatment is the content of the owner’s beliefs, we can assume that the court’s analysis is itself not viewpoint neutral.
There is more in this vein, but one more example will suffice. The court rejects the baker’s claim that he is being compelled to express a message celebrating same-sex marriage by facilitating the wedding using his talent. The court denies there is any compulsion to send a message:
[T]he compelled conduct is the Colorado government’s mandate that Masterpiece comport with CADA by not basing its decision to serve a potential client, at least in part, on the client’s sexual orientation. This includes a requirement that Masterpiece sell wedding cakes to same-sex couples, but only if it wishes to serve heterosexual couples in the same manner.
So, the court thinks it’s OK to make someone send a message as long as the message is mandated by the government? How is that not compelled speech? What does compulsion mean if it doesn’t mean being forced to do something by force of law?
The court even goes so far as to claim that the baker’s freedom of speech can be preserved by “posting a disclaimer in the store or on the Internet indicating that the provision of its services does not constitute an endorsement or approval of conduct protected by [Colorado law].” Surely someone at the court could have seen the irony in suggesting that the baker’s freedom of speech could be preserved by saying that the only reason he is sending the message is that the law requires him to. Is a person any less a hostage when their captor forces them to make a video saying everything’s great?
It says something that courts like this one have so little confidence in the public policies they would impose on others that they must punish dissenters by creating new legal standards that don’t apply to those who agree with the new morality.
For Sutherland Institute, I’m Dave Buer. Thanks for listening.
This post is an expanded transcript of the Sutherland Soapbox, a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found below.
Receive this broadcast each week directly to your iTunes by clicking here.
Photo credit: Amy Quinn via Wikimedia Commons