Right, wrong and liberty

There are valuable lessons from the latest U.S. Supreme Court ruling in which the justices sided with a Colorado baker who refused to create a wedding cake for same-sex couple Charlie Craig and David Mullins.

In a strong 7-2 decision, the court ruled that the Colorado Civil Rights Commission was wrong in ordering baker Jack Phillips to stop making wedding cakes altogether if he wouldn’t create one for same-sex couples.

Reading through the decision, in which just about every justice weighed in, is a refreshing study in uncommon jurisprudence. It’s encouraging to see common sense carry sway on so many points.

For example, the commission had previously denied charges of discrimination against three other bakeries that refused to bake cakes for anti-gay customers. Those bakers didn’t want their work or their name associated with something that didn’t reflect their personal views.

But when it came to Phillips’ case, the commission seemed to attach weight to subjectivity–whether commissioners agreed with the reasons for the refusal, rather than the impartial rule of law. At least one of the commissioners openly disparaged Phillips, characterizing his professed religious beliefs as “despicable” and insincere.

Same-sex marriage was illegal in Colorado in 2012 when the couple approached Phillips, who demonstrated no personal hostility toward them. He didn’t call them names, tell them their money was no good there, or throw them out of his store.

On the contrary, he offered to sell them any of his off-the-shelf products, and even to bake other types of cakes (birthday, etc.) for them. He just didn’t like the idea of artistically creating a cake for an occasion that wasn’t recognized by Colorado law or his own religious faith.

Phillips basically said, “Hey, I’m really not your guy for this.”

The Knot wedding site lists 225 wedding cake bakeries in Lakewood, population 154,000. With that many alternative choices, Phillips’ refusal in no conceivable way deprived Craig and Mullins of the freedom to have a cake for their reception.

The couple chose instead to focus on the embarrassment they say they suffered.

But life is full of embarrassing moments. Just try going, with an average income and budget, to a pretentious purveyor of an opulent luxury item. Some snobby merchants will gently let you know you can’t afford their products or services; others will delight in demeaning and embarrassing you.

Can discrimination based on economic inequality like that make a prospective buyer feel like he is “second class” and not “good enough?” It can and does.

Is it legal? Absolutely.

I believe it’s wrong to treat someone that way, to knowingly and maliciously embarrass someone because they don’t have as much money as other customers. My beliefs are formed from my faith and philosophy; stuck-up luxury-item salespeople obviously have a different set of beliefs.

The greatness of America is the liberty that allows for both those beliefs, and countless more variations between them.

This case recalls to mind Judge Learned Hand, who was supreme in so many aspects but never in the capital-S way.

In 1944, speaking before 1.5 million New Yorkers at a ceremony inducting 150,000 new American citizens, Judge Hand warned against resting hopes of liberty “too much upon constitutions, upon laws and upon courts.”

“These are false hopes,” he continued, with emphasis: “believe me, these are false hopes. Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it.”

A few moments later, he differentiated liberty from an oft-invoked synonym.

“It is not freedom to do as one likes,” he told his listeners. “That is the denial of liberty, and leads straight to its overthrow.”

Too many of us today misconceive freedom and liberty, to our national detriment.

Should Phillips have simply baked a cake for the couple? It would have been a nice thing to do, and a better thing—acts that celebrate love are always superior to acts that cause hurt feelings.

Should Craig and Mullins have simply exercised their free-market rights and patronized another establishment? It would have been a more selfless and gracious thing to do, and the old saying isn’t that pride cometh before a triumph.

Society would have been better served if both parties had striven to honor the spirit of liberty above their self-absorbed individual freedoms.

The Supreme Court neither constrained nor improved that liberty spirit for same-sex couples or for artistic bakers. As Judge Hand predicted, it proved only a foothold for false hopes.

Court decisions create winners and losers, and perpetuate arguments. Though settled in law—Phillips’ choice is now legally sanctioned—news headlines indicate no less contention on the matter than before.

In retrospect, we can hope that one of the parties might be inclined to be the bigger person if it could all be done over. That’s the hope of true liberty, in spirit and heart. When earlier generations remarked of local disputes, “Don’t make a federal case out of it,” they were more profound than they knew.

But Judge Hand knew, and tried to teach. We need to re-learn it.

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