Of Gays, and Marriage, and Cakes, and Religious Cake-Bakers: A Compromise That Protects the Rights of All Involved and Enables Us All to Get Along
By Ken K. Gourdin
At National Review, David French reported on the perverse results of a Colorado appellate court which ruled against a Colorado cake baker after an administrative law judge ruled that the baker was required to bake a cake for a gay wedding even though the baker objected on religious grounds. Mr. French’s report can be found here (last accessed August 27, 2016): http://www.nationalreview.com/article/422566/grotesquely-biased-ruling-against-religious-liberty-david-french.
Here’s how I would “split the baby” with respect to providing goods or services for a gay wedding. While others in my faith (I am a Latter-day Saint/Mormon) object to providing such goods or services on religious grounds, nothing in my religious tradition mandates that I force people to accept my paradigm; I would be interested in fostering goodwill (and in avoiding ill will) against me, against my business, and against my religion (if it were known); and I would be too practical to lose business in such a case. Thus, I would probably agree to provide such goods or services if I were a business owner (though I might, for example, draw the line at decorating a cake with “gay-themed” items, but big deal: buy your own plastic, gay, bride-and-groom and feel free to place them prominently on the otherwise-nicely-decorated cake’s top tier).
However, I understand the concern of those who feel being forced to provide such goods and services would violate their religious conscience. Thus, I would allow business owners to refuse to provide such goods and services (purportedly for religious reasons). A gay couple then would be free to find a willing provider, and the honest, deeply-held religious convictions of business owners still would be respected. That said, I would still allow a gay couple refused such service to sue, but I would require them to show, by the relevant evidentiary standard (preponderance of the evidence, I would assume), that reasonable efforts to obtain similar goods and services at a similar price were unavailing, and I would limit recovery to the difference between what the refusing business owner would have charged them and what the accepting business owner did charge them, along with such related expenses as travel.
The approach I outline above would cut down really quickly on gay activists attempting to engage in lawfare to pulverize recalcitrant business owners into submission, while still respecting both the honest, deeply-held religious convictions of business owners and, at the same time, recognizing and recompensing the wrong of being denied goods or services on the basis of sexual orientation. The battle lines are clearly drawn: One side cheers, “First Amendment Free Exercise of Religion!” while the other cheers, “Fourteenth Amendment Equal Protection!” But I don’t believe, as the majority which decided Obergefell v. Hodges apparently does, that “Free Exercise of religion” encompasses solely what one does within the walls of one’s own holy place on one’s holy day. And I don’t believe any solution other than the one I have outlined adequately protects one’s right to exercise one’s religion freely, not only on his holy day and within his holy place, but everywhere, and always.
And to those who would argue that the solution I have proposed is a step back to the days of Jim Crow, I would respond that isolated, episodic, de facto discrimination is a far cry from the entrenched, state-sanctioned, systemic, formerly-legally-protected discrimination of the kind that the Fourteenth Amendment now prohibits.