The Case for the Baker in the Gay-Wedding Culture War

Masterpiece Cakeshop owner Jack Phillips. Photo: Brennan Linsley/AP

If someone had asked me back in the day, if, in 2017, we’d be having a discussion about whether a fundamentalist baker should be forced by the law to create a wedding cake for a gay couple, I’d have been gobsmacked, as the Brits say. Smacked in the gob because only a decade ago such a question would have seemed so remotely hypothetical as to be absurd. And yet, here we are. A Christian baker has taken a stand on the grounds of religious conscience and artistic freedom not to provide a cake specifically designed for a legal, constitutional same-sex wedding. His case was just argued in the Supreme Court no less. The staggering victories of the marriage-equality movement (now, Australia!) have led us here — far sooner than most of us pioneers ever contemplated. And the speed and finality of this social change has — understandably — frightened, disturbed, and alienated many on the other side. They are still smarting from the sting of defeat, defensibly regrouping and obsessing over their victimhood.

Which is why I think it was a prudential mistake to sue the baker. Live and let live would have been a far better response. The baker’s religious convictions are not trivial or obviously in bad faith, which means to say he is not just suddenly citing them solely when it comes to catering to gays. His fundamentalism makes him refuse to make even Halloween cakes, for Pete’s sake. More to the point, he has said he would provide any form of custom-designed cakes for gay couples — a birthday cake, for example — except for one designed for a specific celebration that he has religious objections to. And those religious convictions cannot be dismissed as arbitrary (even if you find them absurd). Opposition to same-sex marriage has been an uncontested pillar of every major world religion for aeons.

And so, if there are alternative solutions, like finding another baker, why force the point? Why take up arms to coerce someone when you can easily let him be — and still celebrate your wedding? That is particularly the case when much of the argument for marriage equality was that it would not force anyone outside that marriage to approve or disapprove of it. One reason we won that debate is because many straight people simply said to themselves, “How does someone else’s marriage affect me?” and decided on those grounds to support or acquiesce to such a deep social change. It seems grotesquely disingenuous now for the marriage-equality movement to bait and switch on that core “live and let live” argument. And it seems deeply insensitive and intolerant to force the clear losers in a culture war into not just defeat but personal humiliation.

Nonetheless, here we are. And it is a hard case constitutionally. It pits religious and artistic freedom against civil equality and nondiscrimination. Anyone on either side who claims this is an easy call are fanatics of one kind or other. I’m deeply conflicted. I worry that a decision that endorses religious freedom could effectively nullify a large swathe of antidiscrimination legislation — and have a feeling that Scalia, for example, would have backed the gays in this case on those grounds alone. Equally, I worry that a ruling that backs the right of the state to coerce someone into doing something that violates their religious conscience will also have terrible consequences. A law that controls an individual’s conscience violates a core liberal idea. It smacks of authoritarianism and of a contempt for religious faith. It feels downright anti-American to me.

The smartest and most nuanced take I’ve read on the subject is that of philosopher John Corvino. He argues that there is indeed a core right not to be forced to create something against your conscience but that in this particular case, the act of creation is so deeply entwined with hostility to an entire class of people that antidiscrimination laws overrule it. It’s worth reading, but he still doesn’t quite convince me. The baker is clearly not discriminating against an entire class of people; he is refusing to endorse a particular activity that violates his faith. Kennedy was absolutely right in oral arguments to make a distinction between an identity and an activity. The conflation of the two is just too facile.

And there’s a way out of this that need not take such a strong stand in terms of religious freedom. It seems to me the baker deserves to be able to pick and choose what kind of work he wants to do as an artist. A commenter on Rod Dreher’s blog proffers a series of important questions in this respect:

“If the cake shop loses, does that mean that if I’m, say, a freelance designer or an artist or a writer or a photographer, I can no longer pick and choose my clients? If the Westboro Baptist Church comes to me, I can’t reject them on the grounds that they’re deeply un-Christian scumbags? If I’m Jewish, do I have to design a Hitler’s Birthday cake with swastikas on it? Would a Muslim cake-shop owner be forced to design a cake that shows an Islamic terrorist with crosshairs over his face, a common target design in most gun shops in America? Can a gay, atheist web designer choose not to do work for the Catholic Church, or would we have the government compel him to take on a client he loathes?”

It always worries me when gays advocate taking freedom away from other people. It worries me as a matter of principle. But it also unsettles me because some gay activists do not seem to realize that the position they’re taking is particularly dangerous for a tiny and historically despised minority. The blithe unconcern for the First Amendment in the war on “hate speech,” for example, ignores the fact that, for centuries, the First Amendment was the only defense the gay minority ever had — and now, with the first taste of power, we are restricting the rights of others in this respect? Ugh. Endorse the state’s right to coerce speech or conscience and you have ceded a principle that can so easily come back to haunt you. The freedom of any baker to express himself is, in this respect, indistinguishable from that of any gay person to do so — a truth that our current tribalism blinds so many to. I hope, in other words, that the baker prevails — but that the Supreme Court decision doesn’t turn on religious so much as artistic freedom.

One final thought as a Christian. Sealing yourself off from those you consider sinners is, in my reading of the Gospels, the reverse of what Jesus taught. It was precisely this tendency of the religious to place themselves above others, to create clear boundaries to avoid “contamination” from “evildoers” that Jesus uniquely violated and profoundly opposed. If Jesus is your guide, why is this kind of boundary observance such an important part of your faith? Are you afraid your own faith will be weakened by decorating a cake? Would you have ever had dinner with prostitutes or imperial tax collectors as Jesus famously did? What is this Christianity you are so dedicated to? Somewhere, the fundamental Christian imperative to love others and be humble before them has been lost.

In other words, if the liberals were more liberal, and the Christians more Christian, this case would never have existed. It tells you a great deal about the decadence of our culture that it does.

The Jerusalem Folly

I have to say I roll my eyes at the various attempts to explain President Trump’s decision to recognize Jerusalem as the capital of the Jewish state, and to make plans to move the U.S. embassy there. Is it an attempt to shake up the region to make peace more possible — or merely a strategic concession to reality? Why would Trump give the Israelis such a gift while asking nothing in return? Tom Friedman ponderously asks. And how on earth does it help the U.S. in navigating the entire region, since it guts any American pretense at even the appearance of neutrality? The earnest questions are everywhere.

And they are ridiculous. The reason for this move is self-evident. The Trump administration believes in the project of Greater Israel, and the right of just one people to control all the territory from the Jordan River to the Mediterranean. They believe this as a theological and moral imperative, and all other diplomatic considerations take second place. Who are the key figures who hold this belief? Jared Kushner, the dauphin who has dedicated his short adult life to obliterating any concept of a Palestinian state; the U.S. ambassador David Friedman, whose commitment to Jewish supremacy in Greater Israel has always been total; and Mike Pence, whose theological conviction is that Israel must be made whole and eternal (and the Palestinians wished away) if the Second Coming is to arrive. Sometimes, Occam’s razor really helps. There is no need to wonder why this has happened. It has happened because this is now U.S. policy: the extirpation of the Palestinian cause and the complete conflation of America’s national interest with Greater Israel’s in the region. This is what Sheldon Adelson paid for and what Ralph Reed demands. And this is what they will get.

Take the absurdity of Kushner as an envoy to both sides. Appointing him to oversee an Israel-Palestine two-state solution is like appointing David Duke to resolve America’s racial tensions:

“According to tax records, the Charles and Seryl Kushner Foundation donated at least $38,000 between 2011 and 2013 to the American Friends of Beit El Yeshiva, the fundraising arm of a Jewish seminary in Beit El, a West Bank settlement. The Beit El Yeshiva Center is associated with Arutz Sheva, also known as Israel National News, a news organization affiliated with the Jewish settler movement […] In 2012 and 2013, the Kushner family foundation donated a total of $15,000 to the Etzion Foundation, which operates three Orthodox Jewish study institutions in West Bank settlements. In 2011, the family donated $5,000 to Ohr Torah Stone, an Orthodox Jewish educational institution in the West Bank settlement of Efrat.”

For much of that time, Jared Kushner was a co-director of the foundation, a role — surprise! — he failed to disclose before his appointment. Kushner, moreover, has continued to fund West Bank settlements even after assuming his current role, as ProPublica reported on Wednesday: “The charitable fund made a donation of at least $18,000 at the ‘Master Builders’ level to American Friends of Beit El Yeshiva Center, according to a donor book distributed at the group’s annual gala Sunday evening.” That Manhattan gala was attended by John Bolton (scheduled for a meeting with Trump today in the White House), and featured a promotional video about the radical settlement. Set to action-movie music, the short film “showed high-school-age youth training in the settlement’s military academy. ‘Beit El is very important because it establishes our claim that God gave us this land,’ said Karen Frager, an activist who spoke on a video shown on stage.”

And who, for years, was the head of this charity? I give you David Friedman, who is now U.S. ambassador! I mean seriously. What more do you need to know?

The policy is complemented by a cynical alliance with fundamentalist or authoritarian Sunni states, like Saudi Arabia and Egypt, against Iran and Shiite Islam … because targeting Iran is Israel’s primary foreign-policy objective (along with ending the nuclear deal) and getting these regimes to abandon any support for the Palestinians is critical to the legitimization of Greater Israel. Hence the “peace” plan Kushner has discussed with his fellow plutocratic scion, the Saudi crown prince Mohammad bin Salman: “a Palestinian state with only ‘moral sovereignty’ and noncontiguous territory and without East Jerusalem as the capital; no Israeli settlement evacuation; and no right of return for Palestinian refugees.” That is: a few apartheid-style Bantustans for the Palestinians; the designation of Abu Dis, a Jerusalem suburb already cut off by Israel’s wall, as their metaphorical “capital”; and an end to any reasonable two-state solution at all.

And this, of course, has been the de facto U.S. policy for quite a while, because it has been AIPAC’s top policy goal for ages. To see how entrenched this is, it’s important to remember that a two-term president, Barack Obama, was unable even to get a temporary pause in the pace of the intensifying annexation of the West Bank; and that Senate minority leader Chuck Schumer wanted Trump to go even further and use the word “undivided” to describe Jerusalem as Israel’s capital. When Trump says this decision is merely about recognition of reality, he is, in other words, half-right. But it is not a recognition of the reality of the Middle East; it’s a recognition of the reality of American domestic politics, and the unique place that Israel has in it.

Harassment Double Standards

There is an argument going around that the partisan polarization on the question of sexual harassment, abuse, and assault will come back to haunt the GOP at the polls next year. After all, it appears, a clear pattern has now emerged. Democrats who have inappropriately touched or made an ugly pass at various women must resign amid a torrent of condemnation and disgrace. Republicans who have bragged about grabbing women “by the pussy” without their consent, and who have been credibly accused of preying on and cornering minors, remain in completely good standing and deny everything. Surely at some point, voters will notice this double standard and reward the party with the higher and more consistent moral standards. Surely Republican women will pick the Dems in 2018 over their own abusive and hypocritical party.

And yet I wonder. The GOP has held some men responsible. Roger Ailes fell. Even Bill O’Reilly had to go. Last night, a conservative congressman, Trent Franks, announced his retirement because he apparently discussed surrogacy with female staffers; and another Republican, Blake Farenthold, may finally face the music on his own creation of a hostile work environment. Neither has so far been accused of touching or groping anyone — just making the lives of women working for them miserable. There’s enough ambiguity here, in other words, to deny the Dems a total moral victory.

And then there’s the power of tribalism to keep the GOP voters from switching to the Dems. In 2016, tribal loyalty overwhelmed any concerns about demonstrable sexual assault in the presidential election and led to a majority of white women voting for a pig. A year later, it appears to be having the same effect in Alabama. Roy Moore, in the last couple of weeks, has even seemed somewhat empowered by the backlash to the accusations. (The polls, however, still show a close race.).

And all of this will surely affect who comes forward in the future. A woman violated by a Democrat will be likelier to go public — because it gets results. A woman violated by a Republican will fear she could be easily demonized as a liar, a conspirator, or a fraud, and understandably be reluctant to put herself through that. And so the accusations may well mount against Democrats and liberals and diminish somewhat among Republicans and conservatives. Democratic standards for sexual conduct may well keep rising (any proof, for example, that Garrison Keillor ever recorded a single broadcast has now been erased from Minnesota Public Radio’s archives), while Republican standards (that signature on the yearbook photo is obviously forged) may keep falling. I see no reason why this ratchet shouldn’t continue, and why Democrats aren’t, in fact, unilaterally disarming themselves in what is a purely tribal war, where all objective moral or even epistemological standards become relative.

The right’s key edge on this is, it seems to me, shamelessness, a quality currently reified in the Supreme Leader. Ted Cruz’s staggering ability to pull off a transparently double standard on Franken and Moore, within a few seconds, is a classic example of a shame-free partisan at work. Drudge’s and Fox’s hysteria about Democratic and Hollywood iniquity is matched only by their celebration of Republican denials. It takes fathoms of cynicism to get away with this and unknown depths of denial to believe it. But the GOP has oodles of both on hand — and certainly more than the Dems. You get the feeling at times that if some Trump voters were to witness a brutal rape right in front of them, the first question they’d ask would be: Is the perpetrator a Republican or a Democrat? And did the victim vote for Hillary?

This is what Trump has enabled. It has won the GOP one election. It would be foolish, it seems to me, to underestimate its power.

See you next Friday.

Andrew Sullivan: Let Him Have His Cake