Opinion: Why court needs to decide gay wedding case

When I got married last summer, my wife’s seven-year-old cousin decided, with some delight, to celebrate the event by sticking his entire hand into the double-decker masterpiece at the dessert table with our names on it. This is one way to sabotage a gay wedding cake.

Another, less messy, way is to refuse to bake it in the first place. This is the preferred method of Colorado baker-turned-hero-of-the-religious-right, Jack Phillips.

You may have heard of him. In 2012, when David Mullins and Charlie Craig tried to order a custom cake for their upcoming wedding from Phillips’ bakery, Masterpiece Cakeshop, he refused to take the order, stating that baking a custom cake for a same-sex wedding would go against his Christian beliefs. Phillips could make the betrothed something else – a birthday cake, a batch of cookies, a confection crudely moulded into the shape of an acoustic guitar. But a custom cake for a same-sex wedding? Forget about it. Unfortunately for Phillips, Mullins and Craig didn’t. They took him to court instead.

Fast forward five years, and Phillip’s refusal to provide a service to gays that he regularly provided heterosexuals is the subject of a United States Supreme Court case being debated this week. So far media reports suggest that SCOTUS is divided on the case, a division that raises an important question: If you rule in favour of Phillips’s religious freedom to refuse a specific service to gays, what’s to stop a slew of other businesses from discriminating against minorities on the same grounds?

In other words, anyone, regardless of personal bias, would probably be compelled to agree that Phillips vs. Gay Wedding Cakes is a case in which the ultimate ruling will have consequences that reach far beyond a single bakery. But not everyone is anyone. In a recent column titled “How Not to Advance Gay Marriage New York Times columnist David Brooks, who supports same-sex marriage, makes the remarkable argument that Mullins and Craig shouldn’t have taken Phillips to court at all. This is because the court system, a la Brooks, is “dehumanizing. It ends persuasion and relies on the threat of state coercion. It is elitist. It takes a situation that could be addressed concretely on the ground and throws it up, as this one now has been, to the Supreme Court, where it will be decided by a group of Harvard and Yale law grads.”

Sort of makes sense, right? That’s what I thought the first time I read it. Then I thought, wait, you know what’s dehumanizing? Being refused a service because the person across the counter thinks your relationship is an abomination. But Brooks isn’t finished yet. What does he think Mullins and Craig should have done instead of seeking help from the state? They should have taken the “neighbourly approach.”

First of all, a couple planning a wedding, gay or straight, does not have time to host a let’s-reform-the-bigot-next-door dinner. There are invitations to send, flowers to arrange, and yes, cakes to order. Second of all, would Brooks be advocating neighbourly outreach in place of legal intervention if the wronged party was an interracial couple, or even for that matter, a Jewish one.

A person like Phillips, who is willing to fight a lengthy court battle and collect donations from like-minded Americans to defend his right to refuse a service to gays, is not going to shed his prejudice as the result of an evening of queer hospitality. This doesn’t mean that reaching out, i.e. “meeting people where they’re at” as the cliché goes, isn’t a valuable approach to “changing hearts and minds.”

I think meeting people where they’re at and changing hearts and minds is important work. But it’s exhausting work. And furthermore, it’s activism. It’s not the work of a couple planning a wedding.

The year, for God’s sake, is 2017, not 1997, or even 2007. People have had quite a while to get used to the idea of gay marriage and its fallout – that is, none. If you don’t want to bake wedding cakes for gays, don’t bake wedding cakes. If you don’t want to sell something to gay people, or Black people, or Jewish people, sell nothing.

But what’s really insidious, under the reasonable wistfulness of Brooks’s column, is the suggestion that what transpired at Masterpiece Cakeshop was a misunderstanding between people of otherwise good will, who could and should have worked out their differences among themselves.

But there were not two parties of equivalent good will involved. One party thought they should be treated the same as everyone else. The other party thought not. This is why a small altercation involving three people and a cake should be debated in the supreme court, as opposed to somebody’s living room or bakery, just as same sex marriage itself should be debated in a court, rather than decided by popular vote: to protect minorities from the whims of their neighbours.

That’s reasonable.

Emma Teitel is a national affairs columnist.

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