Next Tuesday the Supreme Court will hear Masterpiece Cakeshop v. Colorado Civil Rights Commission, which poses the question of whether the government violates a baker’s right to freedom of speech when it compels him to produce a cake for a gay wedding despite his religious objections to same-sex marriage. Like most (all?) libertarians, I think this sort of coercion is wrong, although I’m not sure the relevant right is freedom of speech. The principle also could be described as freedom of religion or freedom of conscience. At bottom, as Scott Shackford has observed, the dispute is about freedom of association and freedom of contract. But one thing should be clear: It is the government, at the behest of an aggrieved gay couple, that is initiating the use of force. It is the baker, Jack Phillips, who is asking to be left alone. The question is whether he has a right to expect that—or, to put it another way, whether the government’s use of force is justified.
That point seems lost on The New York Times. In a recent story about the Alliance Defending Freedom (ADF), which is representing Phillips, reporter Jeremy Peters conflates the baker’s desire to avoid an implicit endorsement of gay marriage with a government ban on gay marriage. Under the headline “Fighting Gay Rights and Abortion With the First Amendment,” Peters says Phillips and the ADF are trying to “blunt the sweep of Obergefell v. Hodges, the ruling that enshrined same-sex marriage into law.” Obergefell said states must recognize marriages between people of the same sex. It did not say anyone is legally obligated to bake a gay wedding cake.
“We think that in a free society people who believe that marriage is between a man and a woman shouldn’t be coerced by the government to promote a different view of marriage,” ADF senior counsel Jeremy Tedesco tells Peters. “We have to figure out how to live in a society with pluralistic and diverse views.”
That stance, Peters suggests (citing “civil liberties groups and gay rights advocates”), is a cover for “a deep-seated belief that gay people are immoral and that no one should be forced to recognize them as ordinary members of society.” But whatever the ADF’s views of homosexuality, it is entirely consistent to say the government should neither ban gay marriage nor force people like Phillips to endorse it.
That is the position taken by the Reason Foundation (which publishes this website), the Cato Institute, and the Individual Rights Foundation, which jointly filed a brief in support of Phillips. As the headline over a recent Daily Signal story notes, “These Groups Support Gay Marriage While Backing a Cake Baker’s First Amendment Rights.” According to the Times, however, they are “Fighting Gay Rights…With the First Amendment.”
Peters also conflates government and private action in his discussion of National Institute of Family and Life Advocates v. Becerra, a case the Supreme Court recently agreed to hear that challenges a California law requiring anti-aborton “crisis pregnancy centers” to provide information about abortion. Just as Masterpiece Cakeshop has nothing to do with banning gay marriage, the California case has nothing to do with banning (or restricting) abortion. Both cases are about the constitutionality of forcing people to engage in speech that violates their moral principles.
As Peters sees it, “the First Amendment has become the most powerful weapon of social conservatives” seeking to “roll back laws on same-sex marriage and abortion rights.” That gloss is not just misleading but blatantly false. If the ADF wins these cases, its victories will have no effect whatsoever on gay marriage or abortion rights. They will simply carve out some space for peaceful dissent from the social consensus on these issues.
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