To Fight Another Day
The breathing room afforded by the Court should not give Christians a false sense of security.
I tend to think of myself as a fairly strong communitarian, or at least an enemy of the rigid individualism that has afflicted certain strains of American thought since the middle of the 18th century. A society cannot be built on antisocial pillars. Yet even my skin crawls at the dehumanizing mass-man newspeak of the civil-rights branch of the left.
Charlie Craig and David Mullins, the litigious pair who dragged the baker Jack Phillips through court for half a dozen years over his unwillingness to participate in their gay wedding in 2012, take the form to a startling extreme in USA Today this week.
You see, when the Supreme Court ruled in 2018 that these two men and the deferential agents of the Colorado government did Mr. Phillips a grave injustice, it did so only on the grounds that Phillips’s treatment was a blatant instance of religious persecution.
When the Colorado Civil Rights Commission issued the vindictive instructions that Phillips must “change [his] company policies, provide ‘comprehensive staff training’ regarding public accommodations discrimination, and provide quarterly reports for the next two years regarding steps [he] has taken to come into compliance and whether [he] has turned away any prospective customers,” they did so merely because they despised his Christian faith. The Supreme Court thus overturned the commission’s verdict without taking a stance on the underlying issue.
Lorie Smith, a web designer who has been barred from the wedding market by the same “anti-discrimination law” that strung up Jack Phillips, thus brought her own case against the compelled-speech statute, hoping to score a broader victory. On Friday, the Supreme Court granted one, affirming the obvious fact that a man or woman cannot justly be forced to produce speech that contradicts his or her sincerely held beliefs.
Craig and Mullins write that this First Amendment liberty “greenlights discrimination” as they grumble about “the harm caused to LGTBQ+ individuals who are denied equal access to public accommodations.”
Never mind that no real harm can possibly be caused by the restriction of available bakeshop options by one. The term on which their argument hinges is a bothersome one: public accommodations.
It has its roots in the civil rights regime of 1964, which superimposed a new system on the longstanding United States Constitution. And it would be reasonable enough if it meant what it says; nobody will argue that the town should shut off a man’s public water for the crime of sodomy, much less for a simple fact like the color of his skin.
But this is not what public accommodation means in civil rights jargon. It means you. It means Jack Phillips, and anyone else who hopes to live some part of his life outside the four walls of his home. Whatever is intended by the letter of the law, the new regime in practice has made clear that operation in the public square—participation in the common life of society—requires compliance. You cannot opt out. You cannot plead conscience. State-enforced homosexuality is more than an edgy meme.
The overreach is justified by a good deal of fear-mongering about supposed harm. Craig and Mullins lay it on thick, but their melodrama is nothing compared to the dissent of Justice Sonya Sotomayor. The justice preaches that “invidious discrimination” is not one of “the values in the Constitution.” She worries that the resurrection of such practice “reminds LGBT people of a painful feeling that they know all too well: There are some public places where they can be themselves, and some where they cannot.… Ask any LGBT person, and you will learn just how often they are forced to navigate life in this way.” (Every Christian in America unavailable for comment.) She even makes an emotional appeal to the death of Matthew Shepard, a 21-year-old meth dealer who happened to be gay and was murdered by two drug-trade associates.
The activists attempt to contrast this harm with the rosy life of the people they persecute. Both the Craig-Mullins op-ed and a number of other early takes on the ruling note bitterly that Smith was never asked to design a website for a gay wedding. They take this to mean that no person was harmed, and it is difficult to read this conclusion as anything other than blind egotism.
When Jack Phillips was forced to stop making wedding cakes altogether, he lost 40 percent of his business. A similarly sizable chunk of income is no doubt lost by a boutique web designer driven out of a massive sphere of the small-scale web design market. Yet it seems beyond these people’s moral capacity to put themselves in her shoes.
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It is also worth noting that the radical front has framed itself (in this as in so many other battles) as David up against the reactionary Goliath. Never mind the long march through every institution, the unanimous endorsement of every cultural power, the outright criminalization of dissent. By sheer numbers, the claim is absurd. In each of these related cases, the persecuted artist has been represented by Alliance Defending Freedom, a scrappy legal outfit dedicated to an ethos of Christian liberalism; the activist complainants, meanwhile, have prosecuted their cases through the American Civil Liberties Union, a 1.8 million-member behemoth that has spent the last century using courtroom bullying to drag this country leftward.
Even discounting the latter’s numerous affiliates, ADF has barely one-fourth the annual budget of the ACLU. With no sense of irony, the men who trampled on the rights and livelihood of a humble baker for nothing but their own smug self-interest and satisfaction groan that the ADF’s cases “advance conservative Christian power and privilege at the expense of everyone else, especially LGBTQ+, women, and racial and religious minorities.”
Plaintiffs like Craig and Mullins lost these cases not because the cards were stacked against them, but because their causes were so plainly unjust that even a stacked deck could not ensure their desired outcome. It is a thin safeguard, and the breathing room afforded by the Court should not give Christians a false sense of security. As Jack Phillips has learned, the next attacks will follow quickly.