The legal course is inherently adversarial. It takes what could be a conversation and turns it into a confrontation. It is dehumanizing. It ends persuasion and relies on the threat of state coercion. It is elitist.
Five years ago, Charlie Craig and David Mullins walked into a bakery in a strip mall in Lakewood, Colorado, to ask about a cake for their wedding. The baker, Jack Phillips, replied: “I’ll make you birthday cakes, shower cakes, cookies, brownies. I just can’t make a cake for a same-sex wedding.”
As Adam Liptak of The New York Times reported, Phillips is a Christian and believes that the Bible teaches that marriage is between a man and a woman. Phillips is not trying to restrict same-sex marriage or gay rights; he’s simply asking not to be forced to take part.
Craig and Mullins were understandably upset. As Mullins told Liptak, “We were mortified and just felt degraded.” Nobody likes to be refused service just because of who they essentially are. In a just society people are not discriminated against because of their sexual orientation.
At this point, Craig and Mullins had two possible courses of action, the neighborly and the legal.
The neighborly course would have been to use this situation as a community-building moment. That means understanding the concrete circumstance they were in.
First, it’s just a cake. It’s not like they were being denied a home or a job, or a wedding. A cake looks good in magazines, but it’s not an important thing in a marriage. Second, Phillips’ opinion is not a strange opinion. Barack Obama was elected president arguing that a marriage was between a man and a woman. Most good-hearted Americans believed this until a few years ago. Third, the tide of opinion is quickly swinging in favor of same-sex marriage. Its advocates have every cause to feel confident, patient and secure.
Given that context, the neighborly approach would be to say: “Fine, we won’t compel you to do something you believe violates your sacred principles. But we would like to hire you to bake other cakes for us. We would like to invite you into our home for dinner and bake with you, so you can see our marital love, and so we can understand your values. You still may not agree with us, after all this, but at least we’ll understand each other better and we can live more fully in our community.”
The legal course, by contrast, was to take the problem out of the neighborhood and throw it into the court system. The legal course has some advantages. You can use state power, ultimately the barrel of a gun, to compel people to do what you think is right. There are clearly many cases in which the legal course is the right response (Brown v. Board of Education).
But the legal course has some disadvantages. It is inherently adversarial. It takes what could be a conversation and turns it into a confrontation. It is dehumanizing. It ends persuasion and relies on the threat of state coercion. It is elitist. It takes a situation that could be addressed concretely on the ground and throws it up, as this one now has been, to the Supreme Court, where it will be decided by a group of Harvard and Yale law grads.
Most important, it is abstract. The situation between Phillips and Craig and Mullins was a highly specific event involving three persons. But the state doesn’t see particularity and it doesn’t think personalistically. The state seeks to create uniform, universal law. So the legal process simplifies, depersonalizes and abstracts. This case, which goes to oral argument Tuesday, is now revolving around an arbitrary argument over whether baking is more like an expressive profession like being an artist or a commercial profession like being a limo driver.
The situation of Phillips, Craig and Mullins could be captured in a fine novel. But the legal system turns it into an arcane debate over how many angels can dance on the head of a pin.
This is modern America, so of course Craig and Mullins took the legal route. If you want to know why we have such a polarized, angry and bitter society, one reason is we take every disagreement that could be addressed in conversation and community and we turn it into a lawsuit. We take every morally supple situation and we hand it over to the legal priesthood, which by necessity is a system of technocratic rationalism, strained slippery-slope analogies and implied coercion.
Legal conflict is a clumsy tool to manage the holy messiness of actual pluralistic community. The legal system does not deal well with local and practical knowledge, the wisdom to know when a rule should be applied and when it should be bent. It does not do well with humility, tolerance and patience — virtues that are hard to put into a rule and can be achieved only in a specific situation. It inevitably generates angry reactions and populist uprisings.
Readers of this column know that I fervently support same-sex marriage, but I don’t think bakers like Jack Phillips are best brought along by the iron fist of the state. I don’t think the fabric of this country will be repaired through the angry confrontation of lawyers. In this specific situation, the complex art of neighborliness is our best way forward.