When the Oppressed Turns Into the Oppressors

Because Colorado would not grant them a license, gay couple David Mullins and Charlie Craig got married in Provincetown, MA in 2012 – some 2,000 miles away.  And because Jack Phillips would not bake them a wedding cake for their hometown reception in CO, they bought one from another bakery in the Denver area.  Many of us would say: Fine – Done deal.  Not so fast.

Mullins and Craig got married 2-years before a federal appeals court decision forced CO to lift its ban on same-sex unions.  They, therefore, had no choice but to leave the State of CO for their wedding in the State of MA.  [At the time, CO was stopping every county within its borders from issuing marriage licenses to same-sex couples.]

Now Phillips, who owns Masterpiece Cakeshop in Lakewood, CO, has no such control over his fellow bakers.  Mullins and Craig had many choices when Phillips turned down their business, saying his religious beliefs precluded him from baking a cake on the occasion of a gay wedding.  They, nevertheless, later argued that Phillips was legally required to bake them a cake, and earlier this month a state appeals court agreed.

Upholding a 2014 decision by the Colorado Civil Rights Commission, the Colorado Court of Appeals said Phillips violated the Colorado Anti-Discrimination Act, which makes it illegal for a business to deny customers “full and equal enjoyment” of its goods or services “because of” their sexual orientation.  The court rejected Phillips’ argument that forcing him to bake gay wedding cakes violates his right to freedom of speech by compelling him to endorse a message with which he disagrees and his right to the free exercise of religion by requiring him to act contrary to the teachings of his faith.

The court said simply baking a wedding cake does not qualify as “expressive conduct” protected by the 1st Amendment … although it left open the possibility that inscribing the cake might.  As for the religious freedom claim, the judges noted that the U.S. Supreme Court (since 1990) has taken the position that “neutral laws of general applicability” are constitutional, even if they make it difficult or impossible for someone to practice his religion, unless there is evidence of an intent to target a particular sect.

Whatever you think of these constitutional conclusions, let’s be clear about what’s happening here: In 2012, according to the state of CO, Mullins and Craig had a “civil right” to a cake baked by Phillips, but they did not have a civil right to a marriage recognized by the State of Colorado.  The truth is precisely the opposite.  You know something has gone terribly wrong with our reasoning about rights when the same state that forced Mullins and Craig to travel so far for their nuptials insists that Phillips had a legal obligation to bake a cake in celebration of the marriage it refused to recognize.

Because of the special powers they wield, including the power to decide who qualifies for the various legal benefits of marriage, governments have an obligation to treat people equally, without regard to sexual orientation.  A private citizen (like Phillips) has no such obligation unless legislators decide to impose one.  The government is saying the freedom of some must be sacrificed for the comfort of others.

It is not hard to understand why Mullins and Craig, especially given their state’s policy of discriminating against gay couples (back in 2012), were offended by Phillips’ refusal to bake them a wedding cake (back in 2012).  But Mullins and Craig’s response to use the coercive power of that same state to make Phillips violate his deeply held beliefs in the name of tolerance – turns the oppressed into the oppressors.

Rev. Dr. Kenneth L. Beale, Jr.

Chaplain (Colonel-Ret), U.S. Army

Pastor, Ft. Snelling Memorial Chapel