04/06/2015 07:53 pm ET Updated Dec 06, 2017

Cake Wars Getting Stickier

Not since the line "Let them eat cake!" was supposedly uttered have delicious baked goods been so central to a political upheaval. Yes, we have entered what might be called the political era of "Cake Wars," it seems. Now, I don't mean to trivialize an important civil rights issue by relegating it to the dessert cart (as it were). But with all the political frenzy about both religious freedom and discrimination, the pundits always seem to come back to the same classic case: a baker contemplating whether to bake a cake for a gay wedding. It reduces the moral and legal arguments to a case that is both easy to understand and downright ordinary. What strikes me, though, while listening to the argument rage, is that most people on both sides of this argument haven't really come to grips with the larger implications of what they're advocating. To stretch the metaphor one last time, things could get a lot messier, as when a mischievous spouse mashes a slice of cake into their newly-wedded loved one's face at the reception (an admittedly bizarre ritual some couples feel honor-bound to perform, for the entertainment of their guests). That's right, folks -- the Cake Wars haven't actually gotten sticky enough, yet.

Because this Sunday was Easter, the political chat shows invited a number of Catholic bishops on, as they normally do. This time, however, the interviews couldn't remain focused on the Christian holiday but instead all were forced to venture into the political question of religious freedom versus civil rights -- a question that Indiana and Arkansas had just finished struggling over. The bishops all stood strongly for their right to their beliefs, of course, and many of them tried to thread the needle of: "We don't want to support discrimination, but we actually do think bakers should be able to discriminate when it comes to wedding cakes," to one degree or another. What it really all boiled down to was supporting the right of a business to discriminate against gay weddings, while simultaneously being horrified of the word "discrimination." They wanted the right to discriminate, but didn't want it to be called that, in essence.

That's all fine and good for them -- there's no law that says religious leaders aren't allowed to attempt their own political spin, after all. Because they found themselves not just giving their usual annual platitudes about the importance of Easter but instead having to comment on a current political issue, it's easy to give the bishops the same leeway every other political commentator gets.

But I was personally left wondering why a few other pertinent questions weren't asked of these religious leaders. Because the issue gets larger than just same-sex marriage when you look at its legal construction. So far, nobody has really brought any of this up, since the obvious intent of the current push for "religious freedom restoration" laws is to codify legal discrimination against gay weddings and other gay rights. The entire effort is what the military would call covering a tactical retreat, since the anti-marriage-equality forces almost all have come to realize that they're about to lose their cause forever at the Supreme Court (expected ruling: June). Because they won't have gay marriage to use politically anymore, they're opening a new front by attempting to give license to businesses to continue to discriminate against gay marriages.

However, realizing that public opinion is fast shifting away from them, the anti-marriage-equality folks also realized that they can't be as obvious as they once were. Passing "marriage is only between a woman and a man" ballot initiatives is no longer an option, to put this another way -- all such are about to be declared invalid by the Supreme Court, after all. Instead of plain language, then, they decided to tweak a law which was originally passed by Congress -- the federal Religious Freedom Restoration Act. However, the recent attempts in Indiana and Arkansas tried to revise the R.F.R.A. language at the state level with changes to allow private businesses to use "religious freedom" as a defense against civil rights charges in court. But because the language is so all-inclusive (the words "gay marriage" or "same-sex marriage" or even "sexual orientation" never appeared in these measures), it raises several interesting questions that, so far, nobody seems to be asking.

What I wanted to see was one of the Sunday interviewers asking one of the bishops whether a Catholic baker should have to agree to serve a wedding cake at the wedding of a woman or man who has been divorced. After all, divorce is not sanctioned by the Catholic Church, therefore any wedding performed for a divorced person would be sinful -- in exactly the same manner that a same-sex marriage would be, for them. Their religion teaches it is wrong and against God's wishes, therefore participating in the event might cause a crisis of conscience for the baker. This begs the question of why has there been no such outcry -- where are the court cases and civil rights fines for Catholic bakers refusing to serve "second wedding" cakes? What does the Catholic Church have to say about a baker who would bake a cake for such a wedding? Why would they not be participating in just as much sin as they would if they baked a cake for a gay wedding? Would the Catholic Church stand firm against any legal effort to punish a baker who refused to serve a second wedding? How is this different than the proverbial gay wedding cake?

Now, I don't mean to single the Catholic Church out, here, it's just that it was the only denomination represented on television yesterday (that I watched, at any rate). You could easily frame the question around any other devoutly religious baker. Should an Orthodox Jewish baker be penalized if he or she refuses to bake a cake for a wedding that will not feature a kosher meal at the reception? Should a Muslim baker be penalized for not baking a cake for a wedding which involved a Christian convert who was formerly Muslim? When you get right down to it, should any devoutly religious baker be forced to bake a cake for a "mixed marriage" (involving two religions, in other words), or even for any couple who didn't share the baker's faith? Would, under the religious freedom law proposed, a sign saying: "We only serve those of the XYZ religion" (fill in the blank for the "XYZ" however you want) be legal? Why or why not? By the language in the original Indiana law, this would seem to be a pertinent question for the law's supporters. How much discrimination should be allowed under the rubric of "religious freedom," after all?

There's an even harder question to ask, though. One with some pretty heavy historical baggage. Should any baker be allowed to refuse to make a cake for an interracial couple, because the baker's religion teaches racial purity? This sounds like some sort of far-fetched hypothetical case, but not so long ago it was indeed a reality. When the Supreme Court decided Loving v. Virginia in 1967, public opinion was overwhelmingly against interracial marriage. And, yes, many people used the cloak of religion to justify their prejudice. There is no law against a religion being racist, remember. So what if a baker today still belonged to a sect which still fervently believed the mixing of the races was not part of God's plan? Why should they (or should they not) be treated in exactly the same fashion, under the law, as the baker who refuses service to a gay couple? It's not some far-fetched academic point -- there are indeed people who still believe this today. Some of them may own bakeries, in fact.

But the entire civil rights issue isn't as cut and dried from the other side as you might think, either. I just read today about what is at least the second instance of a backlash against the backlash -- a person ordering a cake from a baker with a message such as: "We do not support gay marriage" written on it. This is where the issue becomes a double-edged cake server, so to speak. If, after all, the government should be in the business of forcing bakers to make cakes they have moral objections to, then should the government also force a baker to write any message the customer wants on one of their cakes -- no matter how odious the baker thinks the message is? How is it different for one baker to refuse to provide a cake for a gay wedding than it is for another baker to deny the customer the right to whatever message written in icing that they wish? Would the situation change at all if the baker did agree to provide the cake, but just refused to either put two men or two women on the top of it, or (conversely) refused to write the message but provided separate icing for the customer to do so on their own? This way the baker is serving the public -- all the public -- but is drawing the line at the cake's message. Does that matter, when looking at the issue through the civil rights lens?

Just as it's easy to come up with questions about bakers refusing wedding cakes on moral grounds, it's also easy to come up with questions about how, exactly, should a baker be forced to decorate any cake. What should the law state happens when an African-American baker is contemplating whether to deny service to a man trying to order a Ku Klux Klan reunion message on a cake? Or how about a cake with an image of the Confederate battle flag? Would the African-American baker be legally justified in refusing such an order?

To take this to the extreme, should the law dictate that bakers have to provide cakes to all who want them, even if the message on the cake is morally or ethically reprehensible to the baker? What would you do if you were a bakery owner and someone tried to order a NAMBLA-themed cake, after all? How would you have legal justification to refuse the order? Why is that different than a Christian baker refusing a gay wedding cake? Is there any limit to what a customer can demand on a cake, citing his or her civil right to do so? How about a message of unbridled hate (imagine a cake the Westboro Baptist Church might order)?

The problem with drawing this line acceptably is that it's not as easy to do as you might initially think. Many of the examples I've cited here for both sides would indeed be a violation of existing civil rights laws on the books. Even if a state doesn't have "sexual orientation" written into their civil rights law, all cite "religion" and "race" as protected classes. So a bakery would indeed fall afoul the law (no matter what the owner's personal religious beliefs) if they refuse to provide a cake to an interracial couple, or a couple not of the baker's religion. Refusing to provide a cake at all is also different legally than offering to provide a cake but refusing to write a message on it (or put two women or two men atop it). But even doing so -- providing the cake but refusing the message -- is also discriminatory. If the baker professionally writes all other messages ("Happy Birthday!" or "Bon Voyage" or whatever) but balks at certain political messages they personally disagree with, then they are by definition discriminating in the services they provide the public.

Consider the most recent instance. "We do not support gay marriage" is not actually a message of outright hatred. It is a political stance, whether you agree with it or not. It was, in fact, the same stance that both Barack Obama and Hillary Clinton took when running for president in 2008. Before they evolved their positions, could anyone honestly say Hillary and Barack "hated" gays? You may infer that there is some degree of hatred in the thinking behind the message, in other words, but that is little more than an attempt at mind-reading. The message itself doesn't state: "We hate all married gays," or even: "We hate the idea of gay marriage." Motivations aside, the message itself is fairly neutral and politically-based. So, should bakers be allowed to refuse to write political thoughts on their cakes when they don't agree with them? It'd be easy to come up with even more extreme examples on this front, as well.

It strikes me that people on both sides of this issue haven't fully thought through the consequences of their relative positions quite yet. After all, we are talking about using the power of government (fines, shutting down a business, etc.) to compel bakers to bake cakes they don't want to bake (or decorate). The government already does this, to a certain extent, since a baker would face the same fines for refusing to bake a cake for someone of a different race or religion, on the grounds that their religion would consider doing so a sin. Religious beliefs that are deemed detrimental to society's well-being are already constrained, in other words. What we're arguing over is merely another extension of granting such civil rights.

When someone on your own side of the political divide is the one getting their ox gored, it's easy to call up the righteous indignation. But when the issue cuts back a different way, it's also easy to get squeamish about supporting the full range of what you're advocating. Many who agree that bakers should be able to refuse gay weddings would be horrified to learn that this also might eventually encompass the right to refuse to bake a cake for a divorced person's wedding. Many who agree that bakers should be forced legally to cater to gay weddings would likewise be horrified that this might eventually force a baker in Harlem to cater to a K.K.K. reunion party. The dodge of "here's the icing, you write it yourself" is likely not going to stand up legally, if all bakery customers must be served equally (unless the baker forces everyone to write their own messages, that is). There are passionate arguments on both sides of this divide, but many have the flavor of simple rationalization. One outcome is desired, and all the possible complications are conveniently ignored or dismissed out of hand.

These are all weighty issues, far outweighing a fluffy confectionary concoction. The Cake Wars might seem fairly simple at the moment -- centered as they are around the baker and the gay wedding -- but there are larger issues to contemplate, legally. These not only encompass the freedom of religion, but also the freedom of speech and the freedom of association -- all guaranteed us in the Bill of Rights. At its heart (aptly, since we're arguing about cake, after all), the issue is one of how to legislate good taste. Which cakes are in such poor taste that the order can be legally refused? Which cakes will be deemed in good enough taste to legally force all bakers to bake and decorate them? Either way, the issue is a lot stickier than just the question of marriage equality.


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