The kicking and screaming of the anti-gay marriage bitter-enders is becoming a national embarrassment, especially since some of the Republican Presidential candidates can’t seem to resist pandering to them. The social contract in a democracy involves accepting where the system decides to go and following along to the extent the law requires. If we don’t like a law, or a war or a government program, we are free to complain and to try to get them changed, or to pay the price for defying the law as part of the contract. We may not unilaterally declare that the law doesn’t apply to us. No, not even if we think God agrees. He’s not a party to the contract.
This is straightforward and clear. The ethics of citizenship requires it. Two current situations that have had significant developments in recent days illustrate the principle in the breach of it.
Jack Phillips, who is yet another Christian cake baker, lost an appeal that asserted that he had a First Amendment right to refuse to provide a cake for a gay couple to celebrate their wedding.
The Colorado Court of Appeals ruled that his Masterpiece Cakeshop had an obligation to bake and sell the cake to the couple as requested, under Colorado’s public accommodations law, and upheld a cease and desist order filed against Phillips by the Colorado Civil Rights Commission.
In July 2012, Phillips had told same sex couple Charlie Craig and David Mullins that his religious beliefs prevented him from baking the cake they needed but that he would be happy to sell them cupcakes, bread or other baked goods. Phillips argued that decorating cakes is protected expression and religious practice, that he honors God with his artistic talents, and he would displease God by creating cakes for same-sex weddings.
Presumably this is a surmise on his part: no supporting testimony by God was offered in court.
The Court of Appeals rejected his argument, declaring that creating a cake is not sufficiently expressive to trigger First Amendment protections, writing,
“We conclude that the act of designing and selling a wedding cake to all customers free of discrimination does not convey a celebratory message about same-sex weddings likely to be understood by those who view it. We further conclude that, to the extent that the public infers from a Masterpiece wedding cake a message celebrating same-sex marriage, that message is more likely to be attributed to the customer than to Masterpiece.”
The court’s conclusion is impossible to rebut. The cake the baker was asked to bake for the gay wedding differed not all from one he would normally sell a straight couple. In truth, this had nothing to do with expression. He was just refusing to serve a gay couple because of their sexual orientation. Selling them a standard cake would neither constitute, nor would it be recognized as a “message” in support of gay marriage.
The Court agreed that a wedding cake with a customized message celebrating a same-sex marriage as such might implicate First Amendment speech issues, but “we need not reach this issue,” the court said. “We note, again, that Phillips denied Craig’s and Mullins’ request without any discussion regarding the wedding cake’s design or any possible written inscriptions.”
In other words, Phillips was gratuitously and unnecessarily being a cruel jerk. An alleged Christian who is unable to detect the basic Golden Rule application in treating fellow citizens with the minimal level of respect inherent in allowing them to buy a standard wedding cake requiring no “Yay Gay!” or “Charlie and David Forever!” messages in pink frosting deserves no sympathy or quarter from the law. Could the couple have just shrugged and found another bakery? Sure, they could have. Linda Brown could also have just shrugged and found an all-black school to attend, too.
The gay couple are not the villains here. Jack Phillips broke the social contract, as well as the law.
As jerks go, however, Jack Phillips is strictly small potatoes compared to Kim Davis, the clerk in Rowan County, Kentucky, who says her Christian faith bars her from authorizing same-sex marriages, even though they are now legal, even though authorizing them is part of her job. Like the pharmacist who won’t distribute birth control pills to unmarried women, she has no ethical or constitutional argument worth making. Jobs are jobs. Employees don’t get to pick and choose which duties they choose to perform, and their religious beliefs are irrelevant.
Davis is currently refusing to issue any licenses, either to same-sex or heterosexual couples, on the theory that this avoids her discriminating on the basis of sexual orientation. I wonder which of her genius lawyers thought up that dodge. She ignored a direct order from Gov. Steven L. Beshear that she issue the licenses, while Judge David L. Bunning of the United States District Court for Eastern Kentucky, ruling in a case brought by the American Civil Liberties Union, ordered Davis to resume issuing licenses. Davis’s lawyers appealed and sought a stay, and Davis did not show up at work.
I don’t understand why she cannot be summarily fired. Eventually, she will be, I assume. Meanwhile, some churches sent buses full of congregants to rally behind Davis when she appeared in court. “We feel very proud of her,” said the Rev. Harley Sexton Jr. of Sharkey Freewill Baptist Church, “that she has taken a religious stand against the state.” No, she really hasn’t. She is making her state and her faith look backward, cruel and dumb, and she hasn’t any basis for behaving like this. She lives in the United States, she benefits from its laws, and she is allowed to worship as she pleases. If she doesn’t want to issue marriage licenses to all citizens, she can set pins in a bowling alley, be a geek in a carnival, hold up signs at NASCAR races, be a molecular biologist or work for the Westboro Baptist Church painting “God Hates Gays!” signs. Nobody’s forcing her to be a county clerk, and nobody has a right to hold a job she is unwilling to perform. There is a right to be legally married in Kentucky, however, gay or not.
Davis has said that issuing same sex marriage licenses was not something she agreed to when she took the job. So what? We all have new requirements and restrictions to deal with in jobs. Our choice: accept them or work elsewhere.
I bet Jack Phillips will make her a nice farewell cake.