Call the Cake Police

Daily Best of the Web   —   Posted on January 15, 2015

The following is an excerpt from OpinionJournal’s “Best of the Web” at WSJ written by the editor, James Taranto.

Call the Cake Police
The New York Times ’s Frank Bruni is indignant that anyone would see “me and my evidently menacing kind,” meaning “men who have romantic relationships with other men and maybe want to marry them,” as a threat to religious freedom. That turns out to be a straw man. Regardless of their sexual orientation, Bruni and like-minded people are a threat to religious freedom not because of who they love but because of what they are willing to do to people who don’t see things their way.

He offers an example of what he has in mind: “As Michael Paulson noted in a recent story in The Times, judges have been hearing complaints about a florist or baker or photographer refusing to serve customers having same-sex weddings. They’ve been siding so far with the gay couples.” That is, the judges have been rejecting small-business men’s conscientious objections and compelling them to do business with gay-wedding planners. Bruni approves.

Without harboring animus toward gays or sharing the eccentric baker’s social and religious views, one may reasonably ask: If a baker is uncomfortable baking a cake for you, why call the cake police? Why not just find another baker who’s happy to have your business?

Bruni avoids answering the question by making a rhetorical shift from personal indignation to high principle. He takes us down an inverted slippery slope, one that goes from the dire to the trivial:

As these lamentations about religious liberty get tossed around, it’s worth remembering that racists have used the same argument to try to perpetuate segregation. [The ACLU’s James] Esseks noted that even after the Civil Rights Act, the owner of the Piggie Park restaurant chain in South Carolina maintained that he could refuse to serve black people because his religion forbade the mixing of races. The courts were unimpressed. . . .

Would we be content to let a Muslim store owner who believes that a woman should always cover her hair refuse service to women who do not? Or a Mormon hairdresser who spurns coffee to turn away clients who saunter in with frappuccinos?

A normal slippery slope starts with something seemingly benign and leads by steps, usually of declining plausibility, to 1930s Germany or 1950s Mississippi or some other awful conclusion. Bruni does exactly the opposite. He begins with a genuine horror of American history, segregation; proceeds to a notional but not completely baseless threat, Shariah; and ends with a scenario that is both preposterous and utterly unthreatening.

Believe it or not, this is completely logical. To understand why, you have to realize that Bruni’s purpose here is not to vindicate his personal dignity as a gay man. Rather, it is—and he makes this explicit by the end of the column—to reject the principle of religious freedom almost totally.

First, he states the proposition more narrowly, applying it specifically to the types of business that might do contract work for a gay couple marrying:

Baking a cake, arranging roses, running an inn: These aren’t religious acts, certainly not if the establishments aren’t religious enclaves and are doing business with (and even dependent on) the general public.

That is a non sequitur. An act needn’t be “religious” for a believer to object to it on conscientious grounds. Serving in the U.S. military is not a religious act, but believers in pacifist creeds have traditionally been excused from wartime service on conscientious grounds.

To take another example: Suppose we went to a devout Muslim baker and ordered a cake decorated with the image of Muhammad. Presumably he would refuse. If the state moved to compel him to fill our order, would he not have a very strong religious-freedom claim?

When we mentioned this example on Twitter the other night, someone replied by suggesting it was inapposite because our hypothetical, in contrast with the actual gay-wedding examples, does not involve a complaint of discrimination by the disappointed customer. That may be a fair point, but it is not available to Bruni.

His last hypothetical—the Mormon hairdresser with an aversion to secondhand coffee—involves discrimination only facetiously. It is settled law that the prevention of race and sex discrimination is a compelling governmental interest that can (although it does not necessarily) justify curtailment of religious liberty. Some argue—and we suspect a bare majority of the current Supreme Court would agree—that the same is true of sexual orientation.

Surely Bruni is not arguing that discrimination against coffee drinkers (and not just coffee drinkers, but people who openly carry coffee in public) is an evil on anything like the order of discrimination against gays, never mind Jim Crow segregation. The purpose of his reverse slippery slope is to deny that the governmental claim must be subject to strict scrutiny-the applicable standard against religious-liberty claims, of which the compelling-interest test is a prong – or indeed to much scrutiny at all.

To do that, he reduces the religious-liberty claim to a nullity, too weak to withstand even the most ludicrous counterclaim he can think of. If he’s right, our Muslim baker is out of luck. (At least he won’t have to worry about the New York Times’s printing a picture of the offending cake.)

At the end, Bruni reveals just how much he wants to curtail the right to religious freedom: “I support the right of people to believe what they do and say what they wish – in their pews, homes and hearts.” That’s quite a qualification. Religious freedom and free speech, in Bruni’s view, are suitable for exercise only in private.

It gets even more incredible. Bruni is a model of old-fashioned liberal tolerance compared with his colleagues on the Times editorial board. Yesterday they cheered a politician for firing a man because he dissented from gay-rights orthodoxy in a book:

Until last week, Kelvin Cochran was the chief of the Atlanta fire department, where he oversaw a work force of more than 1,000 firefighters and staff.

Mr. Cochran, a veteran firefighter, is also a deeply religious man, and he was eager to bring his Christian faith into the daily functioning of his department—or, as he put it in a book he authored in 2013, to “cultivate its culture to the glory of God.”

But, as the book revealed, his religious beliefs also include virulent anti-gay views. He was fired on Jan. 6 by Atlanta’s mayor, Kasim Reed, for homophobic language in the book, “Who Told You That You Were Naked?” Among other things, he called homosexuality a “perversion,” compared it to bestiality and pedophilia, and said homosexual acts are “vile, vulgar and inappropriate.”

“Cue up the outraged claims that Mr. Cochran’s rights to free speech and religious freedom have been violated,” the editorialists predictably sneer, calling that “an assertion that is as wrong as it was predictable.”

But the Times wants to violate yet another right, to wit:

It should not matter that the investigation found no evidence that Mr. Cochran had mistreated gays or lesbians. His position as a high-level public servant makes his remarks especially problematic, and requires that he be held to a different standard. . . .

Nobody can tell Mr. Cochran what he can or cannot believe. If he wants to work as a public official, however, he may not foist his religious views on other city employees who have the right to a boss who does not speak of them as second-class citizens.

The editors concede there is no evidence of wrongdoing (i.e., discrimination) on Cochran’s part. Solely on the basis of his expressed religious views, they call for him to “be held to a different standard” and banished from public office.

Under the U.S. Constitution, every citizen has the right to vote and to seek public office—rights that can be alienated only through conviction in a felony or impeachment trial. It is the Times editors (who, ironically, regard felon disfranchisement as invidious) who are speaking of Kelvin Cochran as a second-class citizen.

For more “Best of the Web” click here and look for the “Best of the Web Today” link in the middle column below “Today’s Columnists.”