Let’s face it: most of us are happy when others agree with and approve of us. We prefer not to be confronted with sharp disagreement or disapproval. Disagreement can be unsettling, and disapproval can make us uncomfortable or angry. We may even take disapproval as an affront, as we might put it, to our “dignity.”
True, the inhabitants of Western democracies have been lectured for several centuries now about the blessings of pluralism, dissent, and an open and robust exchange of competing ideas. And most of us probably believe in those things, at least to a certain extent. We enjoy a vigorous debate . . . of the right kind, at the right time, and within limits.
Still, it would be pleasant—wouldn’t it?—and less potentially threatening, if people who oppose our most fundamental convictions or ways of life would keep their critical views to themselves and at least pretend to be respectful.
Compelling Public Assent
These observations apply even more strongly to people in positions of power—presidents (of countries, or colleges), CEOs, deans. So it is hardly surprising that as a historical matter, rulers and ruling elites have regularly attempted to suppress or marginalize those with dissenting views and to induce the dissenters to assent—or at least pretend to assent—to the prevailing orthodoxies.
The Book of Daniel relates how Shadrach, Meshach, and Abednego were thrown into a fiery furnace for refusing to bow to Nebuchadnezzar’s golden idol. In the Roman Empire, Christians were required to burn incense to pagan gods and to do obeisance to the divinized emperors.
Under Christendom, Jews, Muslims, and unorthodox Christians were sometimes pressured or compelled to profess approved Christian doctrines: the Spanish Inquisition was sponsored not by the Church but by the monarchy. Still later, in England, affirmation of the prevailing creed became a condition for service in public office, or for the right to attend Oxford or Cambridge.
Critics of such measures, from Tertullian and Lactantius to Locke and Madison, have often objected that it does no good to force people outwardly to assent to creeds that in their minds and hearts they do not really believe.
The objection may be valid as far as it goes, but in many contexts it probably also misses the point. Authorities who seek to compel assent often do not care about saving souls. They may be perfectly content to let people harbor their heterodox opinions in private. What is important is public affirmation—especially of publicly supported practices or doctrines that might be vulnerable in their support.
Think about the celebrated case of Sir Thomas More, who was beheaded because he refused to take an oath supporting the controversial annulment of King Henry VIII’s marriage to Catherine of Aragon and his marriage to Anne Boleyn. More’s family and friends had urged him to (as his beloved daughter Meg put it) “say the words and in your heart think otherwise.” The king and his ministers had proposed basically the same course, promising to leave More in peace if he would simply recite the oath.
Had he done so, the king would have known that More’s private beliefs did not match his outward profession. No matter: it was the outward profession that the king demanded.
Even though (or perhaps because) this tendency to compel public assent is well nigh universal, the makers of the American constitutional order were determined to resist it as an unacceptable violation of human dignity, integrity, and conscience.
It is “sinful and tyrannical,” Thomas Jefferson insisted, opposing a tax for the support of Christian ministers, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves.” But if it is “sinful and tyrannical” to compel people indirectly to subsidize opinions they disbelieve, it is surely even more oppressive to compel them overtly to affirm or assent to such opinions.
Thus, in one of the most revered statements ever to issue from the Supreme Court, Justice Robert Jackson wrote for the Court in the celebrated case of West Virginia State Board of Education v. Barnette that “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”
The longstanding constitutional commitment that Jackson described as our “fixed star” is not only to freedom of expression, but to freedom of non-expression. It is the freedom asserted by Thomas More—the freedom not to affirm (“by word or act,” as Jackson put it) something you do not believe.
Compelling Affirmation of Same-Sex Marriage
Which brings us to the Masterpiece Cakeshop case, which is currently pending before the Supreme Court, and other much-discussed cases in which same-sex couples have sued bakers, a florist, a wedding photographer, and other vendors who have declined on religious grounds to provide particular message-conveying services for same-sex weddings.
If these cases are reflectively considered, it becomes apparent that compelling outward affirmation of same-sex marriage is not merely an incidental consequence of such lawsuits; it is their central and sometimes exclusive purpose.
Thus, unlike traditional antidiscrimination cases, the same-sex marriage cases are not primarily about the denial of a good or service. The same-sex couples in these cases have had no difficulty obtaining cakes or floral arrangements from other vendors. Why then do they sue? Advocates are forthright in explaining that the primary purpose of such litigation is to redress the “dignitary harm” suffered when same-sex couples are told that an objecting baker, florist, photographer, or other provider regards their union as morally wrong or contrary to God’s law.
Claims of “dignitary harm” may be perfectly sincere: people can feel hurt when told that they are acting immorally. By the same token, of course, the same-sex complainants and the states could surely be described as inflicting a severe “dignitary harm” on the Christian vendors by officially disapproving of their fundamental convictions regarding marriage, and then forcibly communicating that disapproval by conscripting these vendors to assist in celebrating the very thing their convictions cannot endorse.
But however real the injury may be (on both sides), the gravamen of litigation demanding redress for “dignitary harm” is that same-sex couples are offended and hurt by the tacit or open communication of other citizens’ beliefs regarding marriage. And the purpose of such lawsuits is effectively to censor or punish an objecting merchant for that communication, and to compel the merchant to remedy the dignitary injury by assisting in celebrating such marriages in direct contravention of his or her beliefs.
It's Not About the Cake
In this respect, the vendor-marriage controversies are fundamentally unlike classic antidiscrimination laws and cases. Historically, the purpose of antidiscrimination laws has not been primarily about messages or expression, but rather about ensuring that needed goods, services, and opportunities will not be denied to vulnerable or historically disfavored groups.
As the Supreme Court explained in Heart of Atlanta Motel v. United States, for example, the protections of the federal Civil Rights Act of 1964 sought to eliminate widespread refusals of service that made it difficult or impossible for African-Americans to find food or lodging when traveling in various regions of the country.
Similarly, laws or constitutional doctrines forbidding discrimination against women have sought to redress the denial of employment or other opportunities on the basis of sex. In United States v. Virginia, Justice Ruth Ginsburg explained the importance of “skeptical scrutiny of official action denying rights or opportunities based on sex.”
The vendor-marriage cases are altogether different. To be sure, advocates sometimes suggest situations or places—the Bible Belt, perhaps, or southern Utah—in which same-sex couples could similarly experience real difficulties in obtaining services.
Perhaps such situations could occur; and one can imagine a rule of law that would allow plaintiffs in such cases to recover for their material injuries—but not for the “dignitary injury” of feeling offended by the communication of another citizen’s constitutionally protected beliefs. Constitutional doctrine does sometimes work (as in defamation law) by limiting the kinds of damages that a plaintiff can recover.
But these conjectures are mostly a rhetorical distraction, because in the actual cases such material injuries have been negligible or nonexistent.
Thus, in Arlene’s Flowers, the case of the Washington florist currently on appeal to the Supreme Court, the plaintiffs claimed, and were awarded, $7.91 in damages for the cost of driving to another florist. In Masterpiece Cakeshop, the complainants neither claimed or received any such damages. (When the incident was reported, another baker had made a cake for them for free.)
The purpose of this litigation, once again, has been mainly or solely about the indignity or offense suffered because of an unwanted message; and the remedies implemented by the courts have been designed to compel the offending vendors to repair or atone for that indignity by assisting in celebrating same-sex marriages in the future.
For their part, the Christian vendors in such cases have likewise been motivated by their unwillingness to express support for something they believe to be wrong. Contrary to the virtually ubiquitous descriptions of these Christians as “anti-gay,” or as having a religious objection to “serving gays and lesbians,” these vendors have been entirely willing to serve anyone, regardless of race, creed, sex, or sexual orientation. Their objection has been to providing a service that conveys a message they believe to be false.
The Colorado court attempted to deflect this point by suggesting that if Jack Phillips, the cake artist, were truly concerned about endorsing same-sex marriage, he could simply put up a sign in his window or a post on the Internet declaring his belief that same-sex marriage is contrary to biblical teachings.
Of course, the same might have been said to the Jehovah’s Witness schoolchildren in the Barnette case: “Just salute the flag and recite the Pledge—everybody will know you’re just complying with state and school requirements, and that you don’t really mean it—and then explain to your friends and classmates what your real beliefs are.” But this response misunderstands both the religious objection and the constitutional principle. Because what is at stake, once again, is a right not to express what you do not believe.
The Right to Keep Silent
The crucial importance of that right—the right to keep silence with respect to an issue—is apparent in many situations involving government-imposed orthodoxies, and it is starkly apparent in the marriage cases. After all, a vendor who does not want to celebrate a same-sex marriage contrary to his convictions may at the same time have no desire affirmatively and publicly to proclaim to all the world that same-sex marriage is sinful. He may wish to bear his witness in quieter ways—with a “still, small voice,” perhaps.
In sum, the vendors do not want to assent, “by word or act,” to something they do not believe.
Conversely, the plaintiffs, and the states, would force the vendors to do exactly that. The plaintiffs do not claim to have suffered from any deprivation of a product or service; those are easily available elsewhere. Rather, the plaintiffs complain of the offense they have felt (the “dignitary injury”) by being in effect told that a vendor disapproves of their marriage.
And the remedy sought by plaintiffs and the states, and ordered by the courts, consists of compelling the vendors to provide a service, not because their service is needed, but because it will amount to a public acquiescence in the celebration of same-sex marriage.
In this respect, the vendor-marriage cases are another instance in the centuries-old pattern in which governments have attempted to compel dissenters or outliers to publicly affirm and acquiesce to the dominant orthodoxy. That is precisely what the cases are all about.
Steven Smith is Professor of Law at the University of San Diego. Professor Smith assisted in writing and submitting an amicus brief in the Masterpiece Cakeshop case, from which this essay has been distilled. Republished with permission from The Public Discourse.