Making Wedding Cakes: Who Decides?


Leonard Zwelling

This is a brutally hard one.

The Supreme Court will have to determine if a baker’s freedom of speech and freedom of religious expression are being undermined if he is forced to bake a wedding cake for a gay couple. Sometimes, the Supreme Court really does have to earn its paychecks.

There is no easy answer to this one, just as is the case with abortion—an irreconcilable disagreement between those defending a women’s body and her right to control it and those defending the rights of a fetus. It cuts to the heart of what it means to be an American. Just exactly where is that line that is the space into which no one else can cross without violating who you are and what you believe?

If the baker can decide to not bake the cake, could he also decide not to bake a wedding cake for a black couple? The exception is that this would not be on a religious basis. I get it, but discrimination is discrimination. When is one prejudice religious and another not?

The arguments in the Supreme Court I am sure were cogent and aimed at Anthony Kennedy who is likely to be the swing vote on this one. Now we can all see that elections have consequences as Neil Gorsuch will undoubtedly vote with Thomas, Roberts, and Alito when a Hillary Clinton-appointed justice might not have. No matter how this comes out, as in the Hobby Lobby case, protecting the individual decision maker not the gay couple may prove another strike for discrimination in all its forms. The argument will not end here.

Decisions like these are made every day. Usually out of sight of the cameras and media. People make all kinds of buying or not buying decisions based on their feelings about those selling and the character of the establishments in which business is done. When does a feeling of discomfort about a salesman become discrimination? I have no idea. What about a doctor?

In today’s medical world, it is very likely that you as a patient may have very little choice as to who takes your blood pressure, draws your blood, or arrives at your bedside in the middle of the night when you are having a medical crisis while an in-patient. The person serving you may or may not fit your picture of what a doctor should look like or sound like. Yet there you are with your life possibly in the hands of someone you might not wish to buy a shirt from under other circumstances.

This is where prejudice must end and we must see each other as individuals. In essence, this is what is under review at the Supreme Court. Who are we as a country? Is it more important to preserve the right of the individual to not do business with whom he or she wishes or is it more important to keep public accommodations open to all in the public?

I had thought we had had this discussion around lunch counters in the South fifty years ago. I guess not. I understand where the baker is coming from, I just cannot abide by his use of his personal religion to discriminate against the gay couple.

I don’t agree with it. But I understand it.

I am glad this isn’t my decision to make. That it seems to be easy for at least eight of the Supremes indicates how divided the country really is.

Leonard Zwelling