On Tuesday of this week, Jack Phillips of Masterpiece Cakeshop appeared before the U.S. Supreme Court, arguing for the right to decline to make custom cakes for same-sex wedding ceremonies.
The oral arguments were fascinating, as the discussion bounced back and forth around public-accommodation laws, the definition of artistic expression, a potential bias against religious people, the distinction between identity and an event, and the connection between LGBT persons and similar cases involving civil rights. (You can read the full transcript here.)
It’s not a good idea to predict an outcome based on what the justices say in oral arguments. In this case, it appears the Court is divided on usual lines, with Anthony Kennedy as the swing vote (what else is new?).
Justice Sotomayor’s Last Remarks
But what caught my eye was something that Justice Sonia Sotomayor said at the end of the presentation, specifically when the conversation concerned the question of American attitudes toward same-sex marriage and whether or not there is a parallel with interracial marriage.
Counsel, the problem is that America’s reaction to mixed marriages and to race didn’t change on its own. It changed because we had public-accommodation laws that forced people to do things that many claimed were against their expressive rights and against their religious rights.
It’s not denigrating someone by saying, as I mentioned earlier, to say: If you choose to participate in our community in a public way, your choice, you can choose to sell cakes or not. You can choose to sell cupcakes or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone.
You’re Free Not to Be in the Wedding Business
The latter part of Jusice Sotomayor’s remarks are reminiscent of what the New Mexico Supreme Court said in ruling against Christian photographers who refrained from working a same-sex wedding ceremony. The New Mexico Supreme Court ruled that, as long as a business does wedding photos, it must photograph any wedding ceremony:
The NMHRA does not mandate that Elane Photography choose to take wedding pictures. . . . That is the exclusive choice of Elane Photography.
In a concurring opinion on that case Justice Richard Bosson said such compromises are “the price of citizenship.”
In other words, wedding vendors are not forced to be involved in this kind of business. Therefore, they can change jobs if they refuse to treat same-sex weddings the same as traditional weddings.
Why We Can’t Abide Dissent
The earlier part of Sotomayor’s remarks are also intriguing. She admits that public-accommodation laws are not merely about fairness in a pluralistic environment, but intend to teach in a way that leads to more progressive views on marriage in the future. In other words, she claims, perspectives on interracial marriage changed because public-accommodation laws forced people to treat these marriages the same.
Likewise, for public opinion to move in the direction of accepting and celebrating same-sex marriage as the same as male-female marriage, the law must force these kinds of compromises. Justice Sotomayor sees the pedagogical role of the law in this case, and thus she is likely to rule against the baker in order to bring about a future in which more Americans will embrace same-sex marriage in much the way they’ve come to embrace interracial marriage.
There’s just one problem. Interracial marriage was once controversial based on superficial distinctions (skin color) that were magnified due to their significance within a racialized society. Same-sex marriage is controversial because of gender distinctions that are profound.
Traditional marriage celebrates the bringing together of the two halves of humanity, the sexual union of a male and female that bears fruit in new life. Nature is terribly discriminatory, for only traditional marriages bring forth children. That’s why, when a male-female couple is unable to conceive, we sense the loss and mourn. Deep down, we know that marriage is oriented (not exclusively, but profoundly) toward procreation.
Same-sex marriages, on the other hand, can only serve as the basis of a family that has been engineered. Children do not flow naturally from the marriage. The relationship can be loving, stable, and committed, but the union is sterile, not artificially through birth control or tragically through infertility, but due to the nature of the union itself. Human bodies were designed to reproduce through the union of male and female. No other arrangement works. So, no matter how many times Macklemore sings “Same Love,” there is and will remain a profound difference in same-sex marriage versus traditional marriage. Only one kind of union can result in children.
So, if society’s views on marriage are to progress in the direction Justice Sotomayor prefers, then by all means, the Christian baker must comply. Unless everyone pretends that same-sex marriage is the same as traditional marriage and treats the two unions the same, the charade is up. We all have to play along. We all have to act like the gender difference is superficial or irrelevant. Otherwise, the ancient view of marriage will persist, and the newly invented view of marriage will not take hold.
The stakes couldn’t be higher. That’s why this case is so controversial, and why many eyes will be turned toward the Supreme Court next summer when the case is decided.