Morris: Forcing Us to Think What We Do not Think
by Leo Morris
I’ve been trying for days, ever since checking out the oral arguments in the Masterpiece Cakeshop case now before the Supreme Court, to come up with an analogy that would make the issues involved easier to understand. But there isn’t one. How do you simplify something so glaringly obvious that even the most obtuse among us should be able to comprehend it?
Masterpiece owner Jack Phillips refused to design and create a cake to celebrate the wedding of a same-sex couple because to do so would violate his religious convictions. To those who would make this case a primary battleground in the country’s ongoing culture war, what he did was no different from the restaurant owner who refuses to serve a gay couple.
But there is every difference in the world, and only by willfully ignoring it can we even take this preposterous case seriously.
The restaurateur is turning people away because of who they are. And he is flouting the long-accepted legal principle that someone maintaining a public accommodation must serve all members of the public. The baker is turning people away because he does not wish to participate in something they want to do. He is a contractor exercising his right to pick and choose the clients he wishes to enter into a contract with, based on what they want him to do and he is willing and able to do.
Who can’t understand that?
Obviously, that is a facetious question, since half the Supreme Court doesn’t seem to get it, which is why everyone is now focused on the swing vote, Justice Anthony Kennedy. He wrote the majority opinion in Obergefell v. Hodges, which legalized same-sex marriage, and now he will apparently decide how vindictive the victors in that case will be allowed to be. Imagine that – whether or not millions of believers will be able to freely exercise their religious beliefs will depend upon which side of the bed one man gets up on one morning.
If you can stay awake following the oral arguments, you’ll find the justices wasting an extraordinary amount of time debating whether this case involves the First Amendment’s religious-exercise rights or free-speech rights. When forcing the baker to say something he does not wish to say, by virtue of making a cake with a message he does not approve of, are we violating his rights as an artist or a worshiper?
In either case, he is being forced to say something he does not wish to say. As a writer, I find it troubling that so many people just skip over that part. In 40 years of editorial writing, I have been able to write many things I believe, but not everything I believe, simply because not everything I believe has coincided with my newspapers’ editorial philosophies. But I have never – ever – been forced to write anything I did not believe. There were a couple of close calls with particularly headstrong publishers, but the crises were ultimately averted. It is nothing less than horrifying that the government could order me to write something against my conscience. And if you think that’s beyond the realm of possibility, you haven’t been paying close enough attention to the twists and turns of First Amendment and civil rights litigation.
It is no accident that the First Amendment sits atop the Bill of Rights. It is meant to protect that which is most crucial to our sense of self and worth – our very thoughts. If the government can make us behave as if we do not believe what we believe, it truly owns us heart and soul.
In the Obergefell case, Justice Kennedy wrote that “The Constitution promises liberty to all within its reach,” a liberty that allows persons “to define and express their identity.” To determine if there is a chance that promise can be kept, it is necessary to keep straight who is asking for tolerance and who is trying to deny it.
We know a thing or two about intolerance in Indiana. After the state’s Religious Freedom Restoration Act was passed in 2015, an intrepid TV reporter asked the owners of a small pizzeria if they would cater a same-sex wedding. Probably not, was the reply, although they would never refuse service to anyone based on sexual orientation.
That was enough to unleash a firestorm of malevolent ignorance on social media, falsely claiming that the state now had a license to discriminate, which prompted a legislative “fix” of RFRA that angered religious observers as much as the original version angered the social justice warriors.
Supporters of the LGBTQ community can still claim they will face perpetual discrimination, but the devout now know that their faith can never be used as a defense against such a claim. Not our finest hour.
So now we wait to see if Anthony Kennedy can bring some clarity to our confusion. We can only hope he gets a good night’s sleep.
Leo Morris, columnist for The Indiana Policy Review, is this year’s winner of the Hoosier Press Association’s award for Best Editorial Writer. Morris, as opinion editor of the Fort Wayne News-Sentinel, was named a finalist in editorial writing by the Pulitzer Prize committee. Contact him at firstname.lastname@example.org.