Reactions to Supreme Court oral arguments in the Masterpiece Cakeshop v. Colorado Civil Rights Commission have been boringly predictable: State your legitimate points, then mischaracterize or ignore the perspective of those with whom you disagree. What is interesting, however, is the unique approach that Associate Justice Anthony Kennedy showed in this case.
In stating both criticism and agreement with some of the claims of each side in the case, Kennedy showed America a better way. That way is defined by open-mindedness and equal consideration of identities, viewpoints and values on both sides of a passionate disagreement.
On one hand, a question from Kennedy suggested that signs stating “we do not bake cakes for gay weddings” could begin cropping up across the country. In bringing up the possibility, he recognized the LGBT community’s legitimate worry about wholesale discrimination based on sexual orientation and criticized the idea that protecting religious freedom means accepting such an outcome.
On the other hand, Justice Kennedy questioned whether a desire not to participate in a wedding amounts to identity-based discrimination against gay and lesbian couples. He recognized the legitimate desire of the baker to live in line with his religious identity and criticized the idea that protecting LGBT civil rights requires discrimination against religious belief from the government.
This approach showed an open-mindedness toward differing viewpoints and treated each side’s identity and values with respect. His questioning rejected the closed-mindedness seen too often from the political and ideological extremes on either side. Instead of simply claiming “bigotry” or “sin” to cultivate prejudice and intolerance toward the viewpoint of the other, Kennedy chose an alternative guided by compassionate consideration and reasonable reflection upon both perspectives.
This alternative approach does not necessarily predict the outcome of the case, but that is beside the point. Extremes on both sides have proven that an unhealthy obsession with a political or policy outcome can lead to justifications for intolerance or prejudice toward those with whom we disagree. The most important aspect of Kennedy’s approach to the case is its implicit invitation to Americans to rise above ideological extremes and find the better way.
That better way is to engage in elevated dialogue — listening as much as speaking — with someone of a different perspective, with the goal of protecting both religious freedom and LGBT civil rights.
In Utah, for example, we engaged in just such a dialogue and found that you can protect a gay or lesbian couple’s right to marry without requiring religiously opposed employees at county clerks’ offices to officiate at same-sex wedding ceremonies. Instead, an affirming officiant was seamlessly provided to the couple to solemnize the wedding. Why can’t we do something similar for marriage-related goods and services?
For instance, subcontracting is a routine practice in a free market economy such as ours. The law could protect LGBT civil rights in the case of market transactions, while also protecting religious freedom by stating clearly that subcontracting marriage-related goods and services for weddings based on one’s religious views regarding sexuality and marriage is not discrimination. The essential protection of civil rights for LGBT people would be affirmed by enshrining in law the need for every person to be served fully and equally.
Regardless of whether this particular idea resolves every issue, arriving at such practical policy solutions is only possible through open-minded, equal consideration of the perspective of “the other.” We hope that the Supreme Court applies the wisdom of Kennedy’s approach and preserves the possibility for a variety of community-driven solutions to move forward. Then communities and elected officials nationwide will have a real chance at finding the better way — one where every person is protected and respected.
This piece has been updated.
Rev. Marian Edmonds-Allen is executive director at Parity, a faith-ba.sed LGBTQ-affirming organization based in New York City.
Derek Monson is executive director at Sutherland Institute, a conservative public policy organization in Salt Lake City, Utah.