Right On: Wedding cakes between a rock and a hard place

December 13, 2017 Utah Channel 3

OPINION — What to do when Constitutional rights collide?

A Colorado wedding cake baker in 2012 refused to supply a wedding cake to a same-sex couple planning their wedding.

The baker, Jack Phillips, said he often serves members of the LGBT community with off-the-shelf products but when acting as an artist providing specialized services, being required to provide cakes for LGBT weddings violates his First Amendment right to free exercise of religion.

The couple claims that he is discriminating in violation of their Constitutional rights stemming from the U.S. Supreme Court’s same-sex marriage decision. They claim that the baker offers wedding cakes to the public but unconstitutionally refuses to serve them. The high court has agreed to review the baker’s case and the decision of the justices is pending.

So whose rights should prevail?

Free exercise of religion has been enshrined in the First Amendment since 1791. A Constitutional right to same-sex marriage was discovered in 2015.

I use the word “discovered” advisedly. Some would say instead that a right to same-sex marriage was invented by the court in response to changing social norms and the personal preferences of five justices.

No reference to marriage of any kind can be found in the Constitution. Instead the court’s decision flowed from the Constitution’s due process and equal protection clauses.

Nonetheless, same-sex marriage is now a Constitutional standard against which today’s wedding cakes must be measured.

Does this mean that once the court discovers a new right, that right is absolute and not subject to reasonable limitations or judicial interpretation?

No. For example, in 1983 the court found a woman’s right to an abortion to be constitutionally protected. However, in subsequent years, it has sanctioned a variety of limitations on that right.

Likewise the court has danced between the free exercise of religion and competing government rights. See an interesting list of such cases here. Add to that list the religious exemptions to Obamacare contraceptive mandates given to Hobby Lobby and Little Sisters of the Poor.

During last week’s wedding cake oral arguments, Supreme Court Justice Anthony Kennedy – often the court’s swing vote – asked questions that gave both parties alternately hope and concern. A 5-4 decision in June is likely with Kennedy making the call.

Not wanting to wait until June, I’ll ask my own questions.

Should a Jewish delicatessen be required to cater a neo-Nazi meeting?

Should a Hindu band be required to entertain at a cattlemen’s barbecue?

Should the country offer citizenship to a Moslem refugee with more than one wife?

Should any restaurant be required to cater a pornographic video convention?

Is there any Constitutional justification for banning polygamy or polyandry between consenting adults 18 and older?

Today, the left sees any Christian religious freedom claim as merely an excuse for Christian bigotry. Illustrative of this view, a Colorado Civil Rights commissioner said it’s “one of the most despicable pieces of rhetoric” when people use their religion to hurt others.

Colorado’s solicitor general only reluctantly disavowed this quote when questioned by justices during wedding cake oral arguments.

The left raises the specter of a wave of lawsuits intended to impose Christian values on the country. The facts tell a very different story.

Luke Goodrich and Rachel Busick report that only 0.5 percent of court cases over the last five years pertain to religious freedom. Of these, those filed by Hindus, Moslems and Native Americans far exceeded their proportion of the population.

The most underrepresented group? Christians.

Goodrich and Busick report that in the 10^th U.S. Circuit Court of Appeals, only four religious freedom victories were won in the last five years. The four: Muslims challenging an anti-Sharia law, Native Americans challenging a ban on killing eagles, reality TV stars challenging a ban on polygamy and atheists challenging a Ten Commandments monument.

Dissenting from the original same-sex marriage decision, Associate Justice Clarence Thomas wrote, “In our society, marriage is not simply a governmental institution; it is a religious institution as well.”

Marriage between a man and a woman has been a religious institution for millennia. Ever-changing social norms have not changed that standard for a large segment of our society.

Consider that doctors and hospitals may choose not to perform abortions as a matter of conscience, the Supreme Court ruling notwithstanding. Abortion is still readily available to those who want it.

Why shouldn’t individuals and businesses be able to choose not to serve same-sex marriages as a matter of conscience? Wedding cakes are readily available as well.

I’m counting on Associate Justice Kennedy to show the baker the same deference and nuance that the court has shown doctors, hospitals and the Little Sisters of the Poor.

Howard Sierer is an opinion columnist for St. George News. The opinions stated in this article are his own and may not be representative of St. George News.

Email: hsierer@stgeorgeutah.com

Twitter: @STGnews