Wedding cakes have become a controversial topic, as a few bakers who object to gay marriages on religious grounds decline to make cakes for those weddings. The U.S. Supreme Court heard Masterpiece Cakeshop v. Colorado Civil Rights Commission on Dec. 5, and will soon decide whether Colorado baker Jack Phillips should be legally required to violate his religious conscience and make a wedding cake for Charlie Craig and David Mullins, a gay couple.
The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” That answers the question pretty clearly. Forcing Phillips to make that cake would violate three First Amendment clauses: the free exercise of religion, speech, and assembly.
“Freedom is the natural state of humankind,” said Libertarian National Committee Press Secretary Richard Fields. “Only governments and criminals have the ability, through force or fraud, to infringe on that fundamental human freedom. Individual bakers do not have that power. Jack Phillips has no power to force other bakers to refuse to make a gay wedding cake. He only has the power to decline making that cake himself. He and all other bakers also have the right not to make cakes that would violate their conscience in other ways, such as refusing to make a swastika-decorated cake for Nazis.”
Arguments before the Supreme Court justices focused on freedom of religion and freedom of speech. Those arguments are important, but they ignore the elephant in the room, the often-overlooked right of assembly that is also integral to the First Amendment — in other words, freedom of association. The freedom to associate with other people includes the freedom not to associate with others. Whether or not his motive is heartfelt religious conviction, Phillips has the right not to associate with others. Craig and Mullins have the right to associate with any number of other bakers who are more than willing to make a cake for them, but they don’t have the right to use the intermediary of government to force Phillips to make that cake.
“As a practical matter, there will never be a shortage of bakers willing to bake cakes for gay weddings or for anyone else,” Fields said. “Most Libertarians would be more than happy to bake such a cake, and bakers in general are in business to provide a product to willing buyers and make money doing so. Turning away customers and earning social disapproval is no way to run a successful business. Libertarians believe that most adults don’t need a paternal government to instruct them in proper moral behavior. Those that do need such instruction will get plenty from those they associate with, or by noticing those who refuse to associate with them.”
It’s important to remember that the Civil Rights Act of 1964 and the civil rights laws that followed were a government remedy for a largely government-created problem. The post–Civil War Jim Crow laws instituted a regime of government-sponsored discrimination, forcing people to behave in accordance with official bigoted policy whether they wanted to or not. Civil rights laws became possible only after U.S. culture changed to be more accepting of others. Legislation did not cause that cultural shift; it was the result of that shift.
We can also thank changing cultural attitudes for the increasing modern acceptance of our gay relatives, friends, and neighbors. The Libertarian Party has led the way on this issue since its founding 46 years ago, beginning with the first openly gay presidential candidate, John Hospers.
“The Libertarian Party endorsed gay rights with its first platform in 1972 — the same year the Democratic nominee for vice president referred to ‘queers’ in a Chicago speech,” pointed out Cato Institute Executive Vice President David Boaz in a column for The Advocate. “In 1976 the Libertarian Party issued a pamphlet calling for an end to antigay laws and endorsing full marriage rights.”
Boaz also noted that as recently as the 2008 presidential campaign, Democratic candidates Barack Obama, Joe Biden, and Hillary Clinton all publicly opposed gay marriage — not to mention Republican candidates John McCain and Sarah Palin. Freedom of association allowed the Libertarian Party to advocate equality before the law for gay people decades before it was on the agenda of any other party.
“Libertarians supported gay rights before they were cool,” Fields said. “But there’s a catch: we support everyone else’s rights too, whether we like them or not. The Constitution agrees with us. In Obergefell v. Hodges the U.S. Supreme Court ruled that same-sex couples have the right to marry as guaranteed by the Due Process clause and the Equal Protection clause of the Constitution. That’s better than prohibition of gay marriage, but the Libertarian Party would take it a step further, insisting that government should have no role in defining marriage, writing marriage contracts, or licensing marriage. Instead, government should at most enforce marriage contracts that have been mutually agreed to by the parties getting married, whether gay or straight.”
Marriage licenses were not generally required before the 1920s, and the ugly root cause of instituting them was to prevent interracial marriage, in the form of anti-miscegenation laws. Under those laws, interracial marriage became a felony — and gay marriage wouldn’t become a possibility for nearly a century. Once again, modern laws are a remedy for a problem that was largely created by government.
“Relying on government to enforce one’s view of morality, rather than using gentle persuasion, is most often the act of a bully,” Fields said. “But it usually backfires.”
It’s nearly impossible for anyone to exercise freedom of religion if they can’t refuse to take actions that violate their religion. Freedom of speech includes the freedom to decorate a cake with artistic expression. It also includes the freedom to decline that expression.
“The Supreme Court will take several months to rule in this case,” Fields said. “We do know, however, that the Libertarian Party aims to field more than 2,000 candidates in the 2018 elections. These candidates will champion the common-sense ideas of cultural acceptance and will advocate ending the nanny-state laws that interfere with everybody’s personal morality.”
