Gay Wedding Cakes And The United States Constitution

12/10/2017 09:09 pm ET Updated Dec 11, 2017
My son and his husband’s wedding cake.
My son and his husband’s wedding cake.

In its 2015 Obergefell v. Hodges decision, the United States Supreme Court ruled that same-sex couples have the Constitutional right to marry. According to the court majority, refusal of some states to recognize “gay marriage” violated both the Due Process and Equal Protection Clause of the Fourteenth Amendment. Although it was a narrow 5–4 decision, same-sex marriage is now the law everywhere in the United States. However, that has not stopped opponents from using legal and extra-legal methods of undermining the decision.

The Supreme Court is currently hearing arguments the case of a Colorado baker, Jack Phillips, who refused to make a “gay” wedding cake to celebrate a same-sex couple’s marriage. According to Phillips, same-sex marriage violates his religious belief that God only sanctions marriages between a man and a woman. He argues that requiring him to bake the cake violates his First Amendment right to religious freedom.

Three of the four justices who ruled against same-sex marriage are still on the Supreme Court, Alito, Thomas, and Roberts, as is a new rightwing activist appointed by Donald Trump. The five-member majority that remains includes a conservative justice, Anthony Kennedy, who wrote the Obergefell decision. Kennedy is once again the swing vote in this case. Based on the questions he posed to lawyers at a recent hearing, Kennedy seems undecided whether to support Phillips’ religious freedom or the married couple’s civil rights.

Legal decisions are most difficult when they seem to pit two fundamental Constitutional rights, in this case religious freedom versus equality before the law. To help Kennedy decide in favor of the married couple, I examine a series of Supreme Court decisions from the past that establish legal precedents, or stare decisis. Given this strong collection of precedents, the only reason for siding with Phillips would be to endorse anti-gay bigotry.

The strongest legal precedent is Reynolds v. United States (1879). In this case the Supreme Court upheld a federal law banning polygamy. The Court ruled that freedom of religion prevented the government from regulating religious belief, but permitted government to regulate actions such as marriage. The Reynolds decision means that Jack Phillips is free to believe what he wants to believe, but not free to do whatever he wants to do or to claim a religious exemption from equal rights laws.

In the 1960s, Piggie Park was a chain of restaurants in South Carolina that refused to serve African Americans. The owner of the restaurants argued that the federal Civil Rights Act violated religious beliefs that compelled him to “oppose any integration of the races whatever.” Federal courts dismissed his argument and in 1968, in Newman v. Piggie Park Enterprises, the Supreme Court ruled that Piggie Park had to pay Newman’s attorney fees.

In Employment Division v. Smith (1990), the Supreme Court decided that Oregon could deny unemployment benefits to someone who was fired from a job for illegally smoking peyote during a religious ceremony. Once again, the Court ruled religious freedom did not excuse people from obeying the law.

In other cases, the Supreme Court has ruled that religious freedom is not an absolute right that supersedes all other rights and responsibilities. In 1982, in United States v. Lee, the Supreme Court decided that a member of a religious sect could not refuse to pay social security taxes for employees on religious grounds. In Goldman v. Weinberger (1986), the Court let stand Air Force penalties against a chaplain who wore religious garb while on duty in violation of military regulations. In Christian Legal Society v. Martinez (2010), the Supreme Court found against a religious group at a public university that wanted to limit membership to students who shared their anti-gay biases.

Based on these cases and the principle of stare decisis, a Supreme Court with any legal integrity has to rule in favor of gay wedding cakes. Personally I prefer strawberry and chocolate with butter cream frosting, but I am flexible.

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