When Legality and Virtue Diverge – Randall Margo, PhD

By Randall Margo, PhD
Board Director and Commentator, G.L.O.B,A.L. Justice

Commencing deliberations in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case, the Supreme Court is poised to render a momentous decision on the future direction of First Amendment rights to free speech and free exercise of religion.

The essential facts of the case are as follows: In July 2012, a gay couple from Colorado, Charlie Craig and David Mullins, planned to marry in Massachusetts and return home to celebrate their wedding. Colorado did not recognize same-sex weddings at that time and the Supreme Court had not yet ruled on Obergefell v. Hodges that found marriage to be a fundamental right that extends to same-sex marriages. Mr. Craig and Mr. Mullins visited Masterpiece Cakeshop in Lakewood, Colorado to purchase a cake for their upcoming wedding reception. “The owner, Jack Phillips, told them that he would happily provide baked goods for them for other occasions, but he would not create a cake for this event, citing his general policy, based on his religious convictions against participating in same-sex marriages.” Mr. Craig and Mr. Mullins did obtain a cake from another bakery, but filed a complaint with the Colorado Civil Rights Commission alleging discrimination by Masterpiece Cakeshop on the basis of sexual orientation. The Commission supported the discrimination complaint and the case has subsequently wound itself through the appeals process until reaching the Supreme Court this fall.

I have no intention of arguing the legalities of the action taken by Mr. Phillips. In fact, using a lawyerly term, I will stipulate from the outset that the government has no legal right to compel Mr. Phillips to use his talent and artistic ability by making a cake to celebrate a same-sex wedding. Rather, I intend to examine the action he took based on Judeo-Christian virtues.

For some context regarding my views, please indulge me to convey some personal history. A couple of years after World War II ended, my dad, a World War II army veteran, with my mom, gathered their life savings to buy their first home in Los Angeles. Among the restrictive covenants of their real estate contract was that the house could not be bought or sold to Jews or Negroes. My parents were Jewish. Imagine the humiliation my dad must have felt when after risking his life for his country, he was considered too repulsive to actually live in one of its neighborhoods. Was it legal – yes! Restrictive covenants preventing real estate from being bought or sold to certain groups was legal up to the time of the Supreme Court’s Shelley v. Kramer opinion in 1948. Fortunately, these covenants were irregularly enforced and my parents were able to buy their home. Discrimination at that time was not limited to housing. Miscegenation laws prohibiting inter-racial marriage were enforced in numerous states prior to the Supreme Court’s 1967 ruling in Loving v.Virginia.

Growing up in Los Angeles, attending college at U.C. Berkeley and living many years in the San Francisco Bay Area I have known numerous gay people, including one of my dad’s sisters, who by the way, served in the Women’s Army Corps during World War II. I bring this information forward because I respect good people of faith who may have been raised in different environments, and perhaps, not have knowingly met or worked with a gay person, and therefore, may not understand that being attracted to the same-sex is as natural for them as it is for us to be attracted to the opposite sex. For those of us who are heterosexual, it is sometimes difficult to fathom how someone could be otherwise. And, a strict reading of biblical writings, such as Leviticus 20:13 does portray same-sex as “detestable,” which can reinforce particular notions and beliefs. But, the question before us, not as Supreme Court Justices, but as people of Judeo-Christian faith and morals is how should we act towards those different from ourselves.

This is where I have to part company with Mr. Phillips and those good people of faith supporting his refusal to make a wedding cake for Mr. Craig and Mr. Mullins celebrating their marriage. We of faith often express our values using words such as humility, mercy, charity and compassion. Where was the humility, the mercy, the charity or the compassion in Mr. Phillips refusal to make a cake. Consider the humiliation Mr. Craig and Mr. Mullins must have felt as they were told, no – I won’t make a cake for you. From their standpoint, Mr. Phillips was saying that the dignity and respect he would gladly provide to all others as a Christian, he would not afford to them. I would ask of Mr. Phillips and his supporters – are gay people not God’s children? Oftentimes, we discuss how the values and culture of our society have come under attack. But, where in Mr. Phillips action is the application of the Golden Rule, as written in Matthew 7:12 – “…Therefore all things whatsoever ye would that men should do to you: Do ye even so to them.”

In one respect, this Supreme Court case inversely reminds me of Roe v. Wade, legalizing abortion. In that case, pro-choice adherents insisted that a woman had the legal right to choose whether or not to bring a child to life. While that rationale prevailed, even its most vociferous supporters never tried to make the case that abortion was the moral or ethical alternative. Consequently, those who opposed abortion have always made the better moral argument that the formation of life overshadows the disposal of life. Now, consider the moral justification being made for Mr. Phillips, which essentially boils down to his right to discriminate based on his religious beliefs. That argument may win on its constitutional merits, but it would likely be a Pyrrhic victory. Imagine having to make the moral justification for discrimination when defending Judeo-Christian values and virtues. Is this the outcome we’re praying for?


The views and opinions expressed are those of the author(s) and do not imply endorsement by G.L.O.B.A.L. Justice. We are a faith-based, nonpartisan organization that seeks to extend the conversation about justice with a posture of dignity and respect.