The Supreme Court has agreed to hear the case Masterpiece Cakeshop v. Colorado Civil Rights Commission, and will decide whether businesses run by religious objectors to gay marriage may refuse to cater a gay wedding. The constitutional question concerns the relation between an evangelical baker’s freedom to exercise his religion and how that freedom is limited by the public’s interest in non-discrimination against certain minorities. There is also the question of whether a corporation—closely or distantly held—has the same free-exercise rights as the folks administering it. Important questions all. But the Court’s answers to them—certain to invoke all manner of reasonable burdens, legitimate functions, public accommodations, and protected classes—will be determined by a question likely to remain implicit during oral arguments: Is religion more or less important than marriage?
To see why this basic question should orient your thinking about the Colorado baker case, imagine the event in question occurring in a fictional village. You can think of such a place, kind of bucolic, filled with norms about what to do and what not to do, and pleasantly bereft of lawyers. Picture the same gay couple walking into the same Christian’s flower shop, and requesting carnations in celebration of their union. And the florist says no. I’m Christian, he says. What does that matter, queries the couple. Well, I object to what you’re doing, the owner says. That’s vile, retorts the couple, we just want to marry, the same as you. No, you want something totally different, and I might add, sinful, says the owner.
And this exchange, totally imaginable—perhaps some version of it has occurred in these very United States, between people who couldn’t tell John Roberts from the Dread Pirate Roberts—must, when it occurs between two private parties, quickly devolve into an argument about whose need trumps whose: the couple’s need for the florist’s services, or the florist’s need to obey his conscience.
The question cannot be answered simply by saying the couple can go elsewhere to buy flowers—and not because a florist is a “public charter,” which must submit to paradigmatically public demands about catering equally to the whole community. The florist’s business is a public charter, but so what? We need to ask what demands the community should make upon those whose behavior it purports to regulate, formally or informally. For instance, I’d say a gun dealer shouldn’t be allowed to sell guns to a mentally unstable person, even if the would-be buyer can pay. Why? Because he might hurt someone, and, to quote Manfred the mammoth from the movie Ice Age, part of what you do in a herd is look out for each other. If the unstable gun-buyer question troubles you, then you realize that you must decide what is reasonable or unreasonable, burdensome or not, based on a prior calculation about what’s important, about what society is most essentially for. If what society really is for, ultimately, is making sure everyone can shop as he likes, then the gun dealer has to sell. If not, then he doesn’t have to sell, because there’s something more important to defend, like people’s safety against the armed unwell.
The florist thinks what society is most essentially for is his religion. The couple thinks what society is most essentially for is its marriage. The question is, which of them is correct?
There are three ways to go about answering this question. The first is to evaluate whether the religious objection is not only sincere but actually meritorious. That is, we might ask whether the Christian is correct because Christianity is correct. If we lived in a theocracy, where every debate would be settled by edicts from the Bishop of Washington, this wouldn’t be a problem. But a pluralistic society, to avoid civil war, has to exclude certain inquiries from public debate. This isn’t because they aren’t worthwhile. In fact, they are the most worthwhile—and for that reason, they would consume public debate entirely. Their ultimate nature acts as an overwhelming stimulant. The only way to debate peacefully about the many other aspects of political life is peacefully to agree to disagree about some other things first.
There’s a second way to answer the question—by favoring the party asking for the less burdensome accommodation. I think it’s clear that the gay couple could get their cake elsewhere pretty easily, whereas the baker-qua-agent will either act against his conscience or not. But that shouldn’t settle the matter. There may be very good reasons to force the baker to act against his conscience—reasons just as good as those he has for telling the gay couple to take its business elsewhere.
There is a third way to answer the question—by asking which objection is based on a more important commitment. That is, which is the more important realm—the religious realm or the marital realm? Short of inquiring whether the substantive contention of the gay couple or of the Christian florist is correct, asking this question most honestly addresses the goods that a society’s commerce ought to promote. So which is it—marriage or religion?
Which is of greater subjective importance? Which of the two determines more, and more crucial, aspects of the life of the person in question? Religion does, because it concerns the vastest realm. To be religious conceptually entails locating oneself within the cosmos, and orienting oneself toward the center of the cosmos. If human life is only a part of the cosmos, then it exists for the sake of the cosmos—as surely as an arm functions for the sake of the whole body. Marriage (or any other human union) may express a deep religious commitment. But it can only ever express it, can never exhaust it. There cannot be a religion starting and ending with sexual union, unless that religion is hedonism.
Coercing a religious baker is like forcing an act of minor cosmic suicide. If the religious life of the person in question is itself an abomination, because false, that is another story. Purgation, conversion by the sword, might be warranted. Unless we are willing to forego all more moderate, neutral principles of settlement, the supremacy of certain spheres of life over others will have to do.
Cole Aronson is a summer intern at First Things.
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