JUST DESSERTS

Sometimes social change arrives slowly.

Slavery was abolished and equal protection enshrined in the Constitution in the 1860s. Yet nearly a century would pass before segregation was outlawed in public facilities, and racial equality would begin to emerge as a fact.

Sometimes social change travels fast. Thirty years ago, 57% of American adults did not approve of sexual relations, let alone marriage, between gays and lesbians. Gallup did not begin to ask respondents about same sex marriage until twenty years ago. Before then, the issue was not considered controversial enough to warrant polling. In 1996, the Defense of Marriage Act went before Congress. Section 3 of the Act declared: “The word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” It passed with overwhelming bipartisan support. Two thirds of the Democratic senators and representatives voted in favor, along with nearly all Republican members. The Act became law when President Clinton signed it. At the time, Bill Clinton opposed same-sex marriage. So did his wife. So did every notable figure in both major parties.

In 2008, when Barack Obama ran for President, he too opposed same-sex marriage, stating: “I believe marriage is between a man and a woman. I am not in favor of gay marriage.” He continued to oppose same-sex marriage until 2012. Hillary Clinton continued to oppose it until 2013.

That same year, 2013, the Supreme Court, in United States v. Windsor, declared Section 3 of the Defense of Marriage Act unconstitutional, effectively ending federal bars to same-sex marriage. Two years later, in 2015, the Supreme Court ruled in Obergefell v. Hodges that state laws banning same sex marriage were also unconstitutional. As the legal and political frontier has changed, so have popular attitudes.  Support, once minuscule, has grown steadily. In 2011, the percentage of American supporting same-sex marriage surpassed those opposing it for the first time.  Today, supporters outnumber opponents by about 2:1.

This brief historical tour evidences the dizzying speed at which acceptance of same-sex marriage has progressed.  This background is worth considering as the legal world anticipates the December 5 oral argument before the Supreme Court in Masterpiece Cakeshop v. Phillips.

The basic facts of the case are summarized in the opinion of the Colorado Court of Appeals. Jack Phillips, a Denver baker, sees his bakery service “as a form of art” that allows him to “honor God through his artistic talents.” A devout Christian, he believes that he would displease God if he created cakes for same-sex weddings. Charlie Craig and David Mullin asked Phillips to “design and create a cake to celebrate their same-sex wedding.” Phillips declined to do so on religious grounds, but he advised them that he would be happy to make and sell them any other baked goods. Craig and Mullin promptly left the store, and obtained a wedding cake from another bakery. Then they filed discrimination charges against Phillips with the Colorado Civil Rights Division, which found in their favor. Phillips was ordered to take remedial actions, including changing his store policy, retraining his staff, and, for the next two years, documenting the reasons for any denials of service.

As the parties prepare to face the Supreme Court, they vie to project the most favorable images of themselves. Craig and Mullin see themselves as heirs to the civil rights struggle of the 1950s and 1960s. Their fight to obtain equal access to Phillips’s bakery services is analogous to black Americans’ struggle to desegregate lunch counters and hotels. Phillips sees his cause as a battle over religious freedom. His refusal to design and create a wedding cake celebrating a same-sex marriage is analogous to the Jehovah’s Witnesses who sued to win the right to refuse to recite the Pledge of Allegiance, on the ground that under their religion, allegiance is owed only to God and not to the State.

The outcome of the case may depend on how the Supreme Court sets the boundaries of the First Amendment. Both sides agree that a person may not be forced to express opinions contrary to his or her religious values. They disagree on whether the creation of a wedding cake constitutes such speech.  If creating wedding cakes is deemed speech, then Phillips will probably prevail. A series of federal cases have held that people may not be forced to express or endorse views with which they disagree. For example, the Supreme Court has held that a private association with a permit to hold a St. Patrick’s Day parade cannot be forced to allow an LGBT group to march and express pride as openly gay Irish. The Court saw parades as a form of speech, and ruled that the association could not be forced to sponsor speech with which they disagreed. In another case, the High Court held that the State of New Hampshire could not punish a motorist (a Jehovah’s Witness, again) for covering the license plate slogan “Live Free or Die,” a motto which violated his religious beliefs.

Phillips and his supporters argue that forcing him to design and create a cake for a same-sex wedding would similarly amount to compelling him to express an opinion which he opposes on religious grounds.

Craig and Mullin and their supporters argue that Phillips may hold whatever views he likes, but when he chooses to sell cakes which celebrate a marriage, he must sell to one and all. He may not discriminate among his customers.

Phillips sees custom wedding cakes as artistic expressions. He points out that customers who pay hundreds, even thousands, of dollars for a wedding cake are not paying such sums simply to obtain a tasty treat. They are paying for a work of art, and since art is undoubtedly protected as speech under the First Amendment, he may not be forced to create such works.

Phillips also insists that he is not discriminating. He points out that gays are as welcome as heterosexual customers to enter his store, and to purchase whatever goods they like. His only refusal is to create a cake designed specifically to celebrate a same-sex wedding. It is the message to which he objects, not the customer.

His opponents respond that wedding cakes are no more expressive than clothing, hairstyles, or plastic surgery. Just as tailors, barbers, and surgeons may be legally compelled to welcome all comers, so should bakers.

Advocates on both sides resort to the “slippery slope” argument, as litigants are wont to do. Supporters of the gay couple contend that if bakers are allowed to turn them away, where will it all end? Will florists who design centerpieces be free to close their doors to gay customers? What about innkeepers who host wedding guests? Or limo drivers who transport them? They imagine a dark world in which any number of merchants – not just wedding cake designers – are allowed to discriminate.

Supporters of Phillips, resorting to the same rhetorical device, contend that if he can be compelled to create a wedding cake against his will, who will be the next creator to face such compulsion? Will a musician be forced to compose and play music involuntarily at gay weddings? Will a newspaper reporter be forced to publish congratulatory stories?

The best response to these “slippery slope” arguments is that courts are often called upon to draw lines of demarcation, and that they must sometimes do so on difficult topographical terrain. That’s their job.

Where should the line be drawn in this case? Sound public policy dictates drawing a line that accommodates Phillips’s position.

Just a few short years ago, a case like Masterpiece Cakeshop would never have reached the Supreme Court for the simple reason that no state would have allowed Craig and Mullin to wed. Now all states must do, as a matter of constitutional law. That represents a seismic shift in societal norms.

When courts confront issues which fundamentally change the way a society functions, they are best advised to proceed cautiously.  The late constitutional scholar Alexander Bickel developed this theme in his classic work on the judiciary entitled The Least Dangerous Branch.  The title is borrowed from Alexander Hamilton’s Federalist No. 78 essay, in which he noted that the judicial branch was the weakest of the three because it has “no influence over either the sword or the purse, …It may truly be said to have neither FORCE nor WILL, but merely judgment.” Bickel saw the Supreme Court’s “legitimating” function as vital to its authority to judge. When it rules on an issue, it “validates” it in the eyes of the public, especially among those inclined to oppose the outcome. Lacking soldiers or police, lacking funds, the Court’s prestige is the sole source of its power.

For that reason, the Court must move cautiously, especially when delving into new territory. It should “declare as law only such principles as will – in time, but in a rather immediate foreseeable future – gain general assent.” Above all, the Court should refrain from imposing its members’ own personal opinions and values.

Were he alive today, Bickel would probably take Phillips’s side, not because of any hostility toward gay couples, but because of his concern for the Court’s prestige and legitimacy. Viewing the dizzying pace toward acceptance of same-sex marriage in this country, he would worry that a judicial order, forcing a baker to create a wedding cake, would undermine the Court’s moral authority.  It would be a bridge too far. As he wrote in an essay criticizing a Court decision overturning state law on reapportionment, the law should be “the process of establishing norms that will not need to be frequently enforced. It is necessarily gradual and slow. It aims at stability and order.”

Bickel’s, as a clerk to Justice Felix Frankfurter, played a pivotal role in helping the Court reach unanimity in the 1954 landmark decision of Brown v. Board of Education of Topeka, which ended segregation in the public schools. That case is known for overturning Plessy v. Ferguson, an 1896 case which had upheld segregation under the infamous “separate but equal” principle.  Reversing a 60-year old precedent and ending racial segregation was far more traumatic to the country than accepting same-sex marriage. So it may seem counter-intuitive to suppose that Bickel would support Phillips today in the Masterpiece Cakeshop case. But Brown v. Board of Education was actually two cases. In the 1955 decision, the Court addressed the question of relief.

When constitutional rights are vindicated, the federal courts typically order immediate relief. But the Supreme Court in Brown recognized that it was steering the country in a new direction.  While the 1954 decision on the merits set a bold new course, the 1955 decision on relief prescribed caution. The Chief Justice, again speaking for a unanimous Court, did not prescribe a timetable. Instead, he ordered the lower courts to ” to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.” Defining “all deliberate speed” proved elusive and controversial. Civil rights leaders strenuously objected to what they considered foot-dragging. Meanwhile, Southern political officials did all they could to obstruct compliance, eventually forcing President Eisenhower to send in federal troops.

But time vindicated the Court’s caution. Gradually, desegregation took hold and spread to other public facilities and accommodations. Although enforcement generated some acts of violence, an order of immediate relief would probably have led to a much greater degree. And while federal law, backed by federal troops and arms, would have prevailed eventually, the cost to the Court in lost prestige and legitimacy would have been incalculable.

Acceptance of same-sex marriage has advanced mainly because the public has seen the issue as an expansion of individual rights. Now comes Phillips, who argues: “What about my rights?” His opponents say there is no right to discriminate, but Phillips insists there is a right to practice religion and that is all he is doing in this case.

There is no easy solution to this case, and those who castigate their opponents as bigots or hate-filled are misguided. Instead of searching for the unfindable, the Court would do better to focus on what Bickel referred to as the “passive virtues” of jurisprudence. In this case, that means exercising caution, and allowing a harmless baker to continue to practice his art and religion without disruption. Acceptance of same-sex marriage steadily ascends. There is time to wait for this cake to rise.