Cake & the First Amendment

The great state of Colorado has become the latest battleground in the culture wars, as a court has ordered a Christian baker to prepare wedding cakes for homosexual couples despite his religiously-formed conscientious objection to so doing. On the one hand, this ruling is a fairly clear violation of said baker's First Amendment rights to freedom of expression and free exercise of religion. On the other, this ruling is in line with a legal tradition going back to the federal 1964 civil rights act. If the state can require a segregationist to serve Negroes at his lunch counter, it would follow the state can also require a Christian to bake wedding cakes for homosexuals. 

I greatly admire the efforts of the Freedom Riders in the 1950s and 60s, but in the interest of constitutional order, I can't affirm forcing people to serve people they don't want to serve, no matter how objectionable I find the choice. I don't have the Malcolm X quote at hand, but I recall him asking something like "Why would you want to eat food prepared by someone who hates you?" I believe the moral power of the lunch counter sit-ins was in shaming segregation before the nation's eyes, and that was powerful enough. Perhaps homosexuals should see whether the same tactic would work for their cause.

As a nation, we have to make a choice (actually, the choice has already been made) between individual rights and desired social outcomes. That fact was made abundantly clear by a recent Denver Post editorial which tried to deny the reality of such a choice. To quote,

...the gay couple's order never got to the stage of discussing what would be on the cake. At that point a baker's "free speech right to refuse" might kick in, depending on the nature of the request.

Instead, Phillips announced preemptively that "I just don't make cakes for same-sex weddings." He refused to bake a wedding cake for the couple "regardless of what was written on it or what it looked like," the judge said.

In a strained and vain attempt to retain freedom of speech (but with a notable lack of interest in religious liberty), the Post argues one might lawfully object to the words or decorations on the cake, but not the cake itself, even though the cake itself is symbolic action and the courts have always recognized that symbolic action is the equivalent of speech. In other words, the Post makes a distinction between forms of speech without establishing a real difference; said distinction will prove of cold comfort to those not in line with the new order.