A California court has ruled in
favour of a Christian baker, Ms. Cathy Miller, who refused to bake a cake for a
lesbian wedding on the grounds that this involved compelled, tacit approval
against her religious beliefs.[1] The present reflection on this matter is
intended to highlight several issues in this case, including but not limited to
issues about the free exercise of religion. The problems with the plaintiff’s case are several and significant,
and they need to be identified rather than rest on only one of the issues.
The court’s decision turned on
reckoning that the baker’s right to practice her religion was protected by the
First Amendment to the Constitution. This
is, indeed, a point that needs to be and has often been asserted, thanks to the
American protection of speech and the free exercise of religion. The First Amendment protects both, stating:
Congress shall
make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.
When the amendment was written, the
problem in European history was the alignment of the state with a particular religious
group—state religion. In now
post-Christian times in America, the importance of this First Amendment can be seen
in protecting religious faith against those who would forbid it or shuffle it off to private beliefs rather than practiced convictions.
Furthermore, ‘free speech’ in
America is very different from protection against ‘hate speech’ in Europe and
the United Kingdom. Hate speech laws
place the burden on speakers to demonstrate that their speech is not hate
speech, since anyone can claim that their speech was offensive or hateful. The American First Amendment does not concern
another’s complaint about speech but the speaker’s right to speak. As such, it is a law protecting speech, not
limiting free speech or making subjective determinations about speech.
Another issue from this case was that
the baker did not refuse to sell any ready-made cake to a person but that she
refused to design a custom cake for the person that would have involved a
lesbian theme against her own religious beliefs. Three important questions arise from this, in
ascending order.
·
Under what law is a vendor compelled to sell
items to customers?
Is a sign, ‘No shirt, no shoes, no
service’ illegal? If vendors are
compelled to comply to conditions of sale set by customers, they are restricted
in their freedom in such a way that labour is in jeopardy of falling into the
area of compelled service, even slavery.
Unreasonable practices are better regulated by the market, not the state,
such that the burden rests on the state to prove that it has a compelling
interest to intervene in the market’s free operation. In the case of the baker, she was quite
willing to sell to any customer at this level of her business practices, which moves
the discussion to the next two levels.
·
Is there a reasonable distinction to be made
between the sale and purchase of necessary items for life and health versus
luxury items, such as a decorative cake?
One might argue that someone
selling essential items of food is under a greater obligation to sell to the
population at large than someone selling non-essential items of food or
anything else. One might imagine a
desperately hungry person without a shirt and shoes wanting to buy food having
grounds to insist that a vendor sell the food to him despite a sign in the
window that says, ‘No shirt, no shoes, no service.’ One can imagine, on the other hand, a person
without a shirt or shoes being reasonably escorted off the premises of a
clothing store—or a bakery. It is
incumbent on the plaintiff to prove necessity, not the vendor of a high end
bakery to explain her reasons for serving or not serving customers. Cake is not a necessity of life. Yet there is a further level to this line of
argument.
·
Under what law is an artist making an income
from her artistry compelled to design certain kinds of art simply because a
patron insists she do so?
This raises the issue of ‘compelled
speech.’ The matter is not simply about
free speech but also about compelled speech.
(Courts apply the term ‘speech’ to expression in general, not just vocal
matters.) No person should have the
right to force an artist to create what she or he wishes. Should a Michelangelo be compelled to
decorate a mosque because he had been paid to paint the Sistine Chapel? Should he be compelled to do so even if he
were of neither faith?
In advancing further in the
argument from freedom of speech to freedom in the exercise of religion, we move
to the issue on which this particular case turned. The argument presented here, though, is that,
even without reference to religious belief, the baker should not have been
compelled to create and sell a cake to someone that she did not wish to
oblige. To compel a person to create a
cake that involves celebrating another person’s beliefs involves forcing tacit
approval from the baker, the more when the baker’s beliefs are at odds with the
customer. Can one compel a publisher to
publish literature that advocates Nazi ideology or another religion with which
one disagrees? To argue that one can be
so compelled is to argue not only for compelled speech but also compelled
beliefs.
In an ironic twist, the plaintiff
in the case, the California Department of Fair Housing and Employment, actually
based their suit against Ms. Miller on a 1959 law meant to protect a business from
discrimination against it because of race, ethnicity, or religion. A ‘right to sell’ was, disingenuously, turned
into a ‘requirement to sell’ by the prosecution.
The problems in this case do not
stop here. The plaintiff in this case
also deposed the accused by questioning the sincerity of her stated religious
beliefs. Several problematic issues
arise from their doing so. On what
grounds does the state claim a role in testing one’s religious sincerity? Even if the prosecution advances such an
argument, the court would have to disallow the argument on the grounds that it
has no right to adjudicate in the matter.
It is the religious group that has the right to determine the sincerity
of its adherents, not the state. Second,
in the plaintiff’s attempt to establish the religious sincerity of the accused,
they weighed into the area of theological interpretation. This, too, is outside the legitimate role of
a court or the state to assess. Making
matters still worse, the plaintiff sought to establish the sincerity of Ms.
Miller’s faith by exploring her beliefs through their own theological
incompetence. They asked whether she
believed in Old Testament food laws, imagining that a negative answer would
demonstrate she did not stand on Biblical teaching after all. This only demonstrates that the problem of
the state’s involvement in religious determinations is not only outside of
their legal authority but also potentially (and, in this case, definitely) outside
of their competence. A prominent
teaching in the New Testament is that Old Testament food laws for Jews did not apply
to the Church. Yet none of this matters
in a court of law: the court has no role to play in such questions between a
Christian and her Church.
For all these reasons, then, the
Christian baker was entirely in her right.
The aggressiveness of the plaintiff, moreover, should be considered harassment,
and punitive, financial damages should be awarded to the baker. The arguments presented here have not had to
do with anything specific to Christian faith; they have been more rational
arguments and legal arguments. If one
were to raise an argument from a Christian standpoint, it would be that which
Peter raised in the first days of the Church.
The Jewish court insisted that the Christians should not speak or teach in
the name of Jesus (Acts 4.18). The
Christians continued to do so, since proclaiming their faith was a matter of
their faith. Brought in a second time to
the court, Peter and the apostles explained in simple terms, ‘We must obey God
rather than men’ (5.29). Those in our
present, post-Christian context who want not only to silence religious speech
but to compel Christians to speak contrary to their beliefs will receive the
same answer: ‘We must obey God rather than men or women.’ Thankfully, the legal system, at least in
America, still recognises the freedom of speech and that the government cannot
establish or prohibit the free exercise of religion. Yet it will make no difference to those who
will always obey God rather than government, culture, or any human group trying
to enforce others to comply with their wishes against God’s commands.
[1] Jon Brown, ‘California court rules
in favor of Christian baker who refused to bake cake for lesbian wedding,’ Fox News (Oct. 23, 2022); available at https://www.foxnews.com/us/california-court-rules-favor-christian-baker-refused-bake-cake-lesbian-wedding
(accessed 23 October, 2022).
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