[N]o one, not the most wild-eyed critic of the principles underlying the civil-rights legislation of the 1960s, ever suggested that, if such laws were passed, they would lead to obscure Christian bakers’ being forced at the point of government bayonets to produce cakes for the celebration of homosexual weddings. (I write “principles” because the Masterpiece case is a challenge to a Colorado statute, not to the Civil Rights Act of 1964.) The slope is, in fact, slippery.
We ought to think a little about how far down the slope we want to go. We ought to think a little about how far down the slope we want to go. Americans look instinctively to our Constitution and to our national political principles for guidance, and our attitude toward them is the civic version of sola scriptura. We tend to generalize when we ought to specify and sometimes to specify when we ought to generalize. The social and political condition of African Americans in the 1960s was indefensible and incompatible with our national ideals. Something needed to be done, and something was, imperfectly. But our generalizing from that has not always been intelligent or prudent or constructive. Jews often were treated shabbily in our country, and sometimes still are, but the case against Princeton’s numerus clausus system of discriminating against Jewish applicants was not the same as the case against Mississippi’s suppression of African Americans. The situation of gay Americans in 2017 is not very much like that of black Americans in 1935.
It is not the case that discrimination is discrimination is discrimination. Telling a black man that he may not work in your bank because he is black is in reality a very different thing from telling a gay couple that you’d be happy to sell them cupcakes or cookies or pecan pies but you do not bake cakes for same-sex weddings — however much the principle of the thing may seem superficially similar. If the public sphere is infinite, then the private sphere does not exist, and neither does private life. Having a bakery with doors open to the public does not make your business, contra Justice Harlan, an agent of the state. A bakery is not the Commerce Department or the local public high school.
Sure, bakery customers may travel there on public roads. But tell me: Isn’t that EPA-regulated air you’re breathing?
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