It was a great day when the Supreme Court struck down the federal Defense of Marriage Act and threw out a California case that could have undermined gay marriage in the Golden State. On that day, gay and lesbian citizens won something profoundly important: acknowledgment of the right to live as they choose, without interference from others who think they know better.
Now the question is: Will gay and lesbian citizens acknowledge that everybody else has the same right? Some certainly will. But others are challenging the notion – and thereby undermining the case for their own hard-won victory.
David Mullins and Charlie Craig, for instance. The gay Colorado couple have filed a discrimination complaint against the owners of Masterpiece Cakeshop, who declined for religious reasons to make them a wedding cake. The Colorado attorney general’s office has taken their side. So, regrettably, has the ACLU.
And they have company: Similar complaints have been brought against bakeries in Oregon, Indianapolis, and Iowa; a Hawaiian bed-and-breakfast; a Vermont inn; a Washington florist; a Kentucky T-shirt company; and more. As gay marriage gains ground, cases such as these likely will flourish.
As they do, they will lend credence to the otherwise ludicrous assertion by social conservatives that there is a “homosexual agenda.” It will remain absurd to suggest gay people are trying to turn straight people gay. Changing other people’s sexual orientation has always been a conservative project, not a liberal one. But it will cease being absurd to suggest that requests for tolerance are actually demands for approval – and that those who claim to celebrate diversity actually insist upon ideological uniformity.
Wedding-cake cases also may help resolve one of the buried tensions over homosexuality and gay marriage – support for which flows from two different kinds of arguments.
The first is thee argument from freedom – in particular the freedom to associate with whom we wish. Its goal is to make sure everyone is treated right. It says individuals should enjoy the liberty to do whatever they like, with whomever they like, so long as their activity is consensual and does not harm anyone else. As Jefferson wrote: “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” By the same token, what Adam and Steve do in the bedroom or at the altar also neither picks a pocket nor breaks a leg. So leave them in peace.
The other argument – the argument from equality – wants to make sure everyone is treated the same. So if straight people get to marry, then gay people should, too. One problem with this argument: It leaves the door open for the infringement of individual rights, so long as everybody’s rights are equally transgressed.
You could see that flaw in stark relief during the era of South African apartheid: U.S. liberals objected vehemently to apartheid, and rightly so. But some seemed almost blasé about the similarly savage cruelty of communism in Cuba or the Soviet Union. This raised the question of whether it was oppression per se that they objected to, or simply the uneven application of it.
These two arguments are not mutually exclusive. You can support gay rights and gay marriage both because they harm nobody and because people should be treated the same. And because the government should treat everyone equally before the law, which is a different and narrower sort of equality.
But there is another, stronger sort of equality: the equality of authority – which suggests social interactions should be consensual because nobody has the right to impose his will on somebody else. This is the sort of equality most compatible with liberty (including the liberty to marry whom one wishes), and the sort of equality gay-rights advocates should embrace.
They should embrace it not only because it is right, but also because it offers the surest defense against depredations by foes such as Pat Robertson – who said last week he wished Facebook had a “vomit” button he could click for pictures of gay couples kissing. Robertson’s hostility is terrible; but without any authority for him to impose his own will on others, it is also toothless.
Yet if we are to respect the best arguments for gay rights, then we also have to recognize that those arguments also apply to people like Robertson – and to the owners of Masterpiece Cakeshop, and to others like them. They should not have the power to impose their will on gay couples. But gay couples should not have the power to impose their own will on them, either. “Live and let live” cannot be a one-way street.
This column originally appeared in the Richmond Times-Dispatch.