Vox may still be keeping up its risible just-the-facts posturing, but it is tendentious to the point of dishonesty: “Colorado baker who refused to serve gay couple now wants to refuse to serve transgender person,” it says.
That is not true, of course.
(But everybody knows that.)
Phillips serves customers of all sorts, including homosexual customers. What he declines to do is to make cakes for certain events, participation in which, even as a vendor, would violate his conscience. As he put it: “I serve everybody. It’s just that I don’t create cakes for every occasion.”
Phillips has been prosecuted under a civil-rights law, but this is not really a case about civil rights: It is a case about compulsion.
After winning his case at the Supreme Court, Phillips was again targeted by Colorado activists, one of whom asked him to make a cake to celebrate coming out as transgender. Phillips declined, and was ordered to the state to compulsory mediation. He is countersuing.
This all began with the best of intentions.
The situation of African Americans in the 1960s was both unjust and untenable. On the one hand, civil-rights activists argued that the project of more closely integrating African Americans into the nation’s social, economic, and political life could not be left up to the states (the Democratic political machines controlling the South were built on segregation) and further that it should not be left up to the states, being a problem that was genuinely national in character. Critics of the 1964 legislation, including Republicans such as Senator Barry Goldwater who had supported earlier civil-rights reforms, argued that the proposed legislation went too far, that the expansive “public accommodations” doctrine would insert politics into what had been private life, politicizing the conduct of business and inviting the federal snout into places where it did not belong. The tragedy was, and is, that both sides were right.
Sexual minorities have faced their share of discrimination, too. President Lyndon Johnson, at the very moment he was positioning himself as a civil-rights champion, described homosexuality as a “sickness and disease.” The public-accommodations burden did not lie quite so heavily on homosexuals as it did on African Americans, if only because a gay man could buy a train ticket or rent a hotel room without announcing his sexuality. But just as black Americans had their “Green Book,” a catalogue of restaurants and hotels open to them, gay Americans also had their guides to safe and friendly places, the first of which was published in that very busy year, 1964.
But it would be foolish to analogize the situation of gay or transgender Americans in Colorado in 2018 to the situation of black Americans in Mississippi in 1930 or Arkansas in 1964. There is widespread tolerance and accommodation, and America’s sexual minorities have social, economic, and political power far beyond what African Americans had in the 1960s. (It is arguably the case that, in spite of their smaller numbers, gay Americans have more social, economic, and political power than black Americans have today, too.) In 1964, the case for intervening in the business of any particular motel operator or restaurateur was identical to the case for intervening in all of them: The problem was systemic, and effectively universal.
The same cannot be said of Jack Phillips and his little bakery. No gay couple seeking a wedding cake is going to have to travel three states away to find one if Phillips declines their custom. No transgender person celebrating a coming out is going to want for baked goods if Phillips refuses service.
Everybody knows this. The activists targeting Phillips do not care. The point is not to see to it that gay and transgender people can live their lives as they wish to — the point is to coerce Jack Phillips into conformity.
This is partly a matter of religious bigotry: Jack Phillips is a Christian, prone to citing the Bible as the basis for his business decisions, and gay activists wish to see such people publicly humiliated. They wish to seem them forced by the machinery of the state to submit and to violate their own beliefs. There isn’t any other juice in going after a previously obscure baker in this way.
The same is true of the Left’s demands for public funding of abortion and for using government power to compel elderly Catholic nuns to add contraception to their health-insurance plans. None of those controversies is about any material benefit. (Planned Parenthood claims that abortion constitutes only 3 percent of its business; surely they could absorb that minuscule cost, perhaps with a little help from Tom Steyer.) The message is clear: “Not only will you tolerate what we want, you will participate in it.” It’s more convenient to make the case for abortion if the blood is on every taxpayer’s hands.
Liberalism has always struggled to balance the protection of minority rights against majoritarian institutions and — less often appreciated — the protection of individual rights. The American Left has liberated itself from such considerations by abandoning liberalism for identity politics and a might-makes-right ethic. Why compel Jack Phillips to knuckle under? Because you can, and because you hate him. Hate is an inescapable part of tribalism, and hate is now the single most important organizing principle of the American Left.
T. H. White understood this ethic, which he described as the constitution of an ant colony: “Everything which is not forbidden is compulsory.” To the cranky dissidents such as Jack Phillips, and to the likewise unassimilated nonconformists of our time, we owe a debt of gratitude. If the human ethic survives the ant ethic, it will be in no small part because of them.