Harsanyi: The beginning of the end of religious freedom

David Harsanyi

Just in case you need a refresher: Back in 2012, a baker in the Denver suburb of Lakewood was asked by a gay couple to make them a wedding cake — two years before gay marriage was even legalized in Colorado. The owner of Masterpiece Cakeshop, Jack Phillips, declined to participate in Charlie Craig and David Mullins’ celebration because such an event conflicted with his Christian faith.

Here are a few things Phillips didn’t do: He didn’t query consumers about their sexual preferences. He didn’t bar same-sex couples from purchasing a cake at a place of public accommodation. He didn’t ask consumers traveling in same-sex pairs to leave his shop. He didn’t hang a “No Gays Allowed” sign in his window.

What he could never have known when he first opened his shop was that celebrating gay marriages would be a precondition for making a living.

Yet instead of exhibiting a basic level of tolerance (or dignity), two priggish bullies decided to call the authorities when Phillips refused to bake them a cake. And the cultural commissars at the Colorado Civil Rights Commission soon ruled that he had discriminated against the couple.

The shop was not only ordered to alter store policy and start baking cakes for gay weddings — or else face debilitating fines — but also forced to provide comprehensive staff training, ensure compliance and then file quarterly obedience reports with the government for two years. In these reports, Phillips has to describe exactly which remedial measures the shop has taken to conform and document the reasons any other patrons were denied service.

Phillips appealed the decision, and a three-panel Colorado Court of Appeals unanimously decided that Masterpiece Cakeshop’s policy against creating wedding cakes for same-sex couples was a “discriminatory and unfair practice,” further ruling that the shop must continue to answer to the Colorado Civil Rights Commission or else be run out of business.

Incredibly, the court acknowledged in its decision that it would have looked at the First Amendment arguments more closely had the gay couple ordered a cake with some explicit messaging that advocated gay marriage. In other words, the Colorado Court of Appeals believes the threshold for denying religious liberty is the presence of advocacy.

I’m sure there will be an appeal. But seeing as most Americans are fine with gay marriage and simultaneously put off by unpleasant (though deceptive, in this case) words such as “discrimination” and “prejudice,” the courts — nearly always driven by the vagaries of public opinion — will find a way to force all to comply. This will go for any other businesses even tangentially related to weddings, such as food catering, music and so on. And the crusade will accelerate until the legal lynch mob gets to religious institutions. No doubt advocates will work backward to come up with a great legal rationalization for all of it.

In American life, the minority should never be compelled to surrender to some form of majoritarianism, judicial force or government. In this case, though, the minority does not have the ability to compromise without abandoning its faith. The other side refuses to compromise precisely because of this reality.

If you admit — and many rational people do, even those who quarrel with the reasoning behind religious obstinacy — that millions of Christians hold some form of a genuine, long-standing religious conviction that prohibits them from celebrating gay marriages but you still support state coercion against them, then you might as well just concede that religious freedom isn’t compatible with your conception of a contemporary society.

David Harsanyi is a senior editor at The Federalist.