Columns, Opinions

Cardoso ’19: How not to protect civil rights

Opinions Editor
Tuesday, December 5, 2017

Just today, the Supreme Court heard oral arguments for Masterpiece Cakeshop v. Colorado Civil Rights Commission. According to the petitioner, his baked goods are not only items that he sells from his shop, but also forms of expression themselves, like a sculpture or a painting. Making cakes that tacitly approve of some behavior that he opposes, then, would be a violation of his right to free expression.

As with most debates within the “culture war,” the discourse has been nothing short of acrimonious. In his Dec. 4 column for the New York Times, entitled “How Not to Advance Gay Marriage,” David Brooks went a step further, though, in his analysis. According to Brooks, the decision by the gay couple to resort to the court system was an overreaction and largely a function of our polarized politics. Yet while it is true that American political culture has been polarizing with particular intensity in recent years, Brooks’ analysis is at best poor advice and at worst a form of complicity in the denial of rights to Americans on the basis of sexual orientation.

The essence of Brooks’ argument is that there were two ways for the spurned gay couple to resolve the dispute. First, he outlined the “neighborly” approach, which involved recognizing that it was just a cake, inviting the baker over for dinner and then patronizing him for other services. This approach, according to Brooks, leaves everyone happier and helps to detoxify our political discourse. After all, if the couple weren’t so ideological or emotional, then they wouldn’t be upset by the baker’s decision in the first place.

The other approach is legal action — wielding the force of the state to achieve some desired objective. This approach is bitter and vindictive and clumsy. Brooks holds that we must resist the temptation to go down this path. We must, instead, strive to resolve our conflicts through “neighborly” behavior. In this imaginary world, we could simply resolve most conflict by ignoring the source of tension completely.

In fairness, Brooks is not wrong in recognizing that our political culture is toxic, nor in noting that we could probably resolve many interpersonal conflicts with sugar rather than salt. But his efforts to apply this approach to safeguarding fundamental civil rights is unreasonable.

For starters, the dispute is not simply “about a cake.” It is about legitimizing discrimination on the basis of sexual orientation. When asked by Justice Anthony Kennedy if he felt it would be constitutional for cake shops to display signs reading “we don’t bake cakes for gay weddings,” the petitioner’s lawyer responded affirmatively. This is disturbing — the logical conclusion of this argument is not that gay couples will need to find new cakes, but rather that they can be marginalized and demeaned publicly. Either out of well-intentioned misunderstanding or some contrived effort to appear moderate, Brooks’ argument reduces efforts to achieve equal treatment before the law to a dispute over cake.

Indeed, the case is truly about protecting fundamental constitutional rights. Allowing businesses to deny service on the basis of sexual orientation (or any reductive categorization) in the name of protecting free speech is both heinous and clearly unconstitutional. LGBTQ+ people in the United States are entitled, by the constitution, to equal protection before the law and, by their status as human beings, to dignity. Forcing gay couples to turn the other cheek on one issue because it seems trivial is profoundly misguided.

My intention, though, is not to get too deep into the legal weeds. Rather, it is to demonstrate that Brooks’ recommendation of “neighborliness” is misguided and reflects the long and storied tradition of powerful groups resisting social change in the name of moderation. Rather than squabbling over neighborliness, we should realize that it is never acceptable to expect that those denied constitutional rights should appease those denying those rights in the first place. Brooks’ approach may seem to be a “reasonable” middle road (he notes his “fervent” support for same-sex marriage). But his approach is simply the same, tired story of the “moderate” who, as Martin Luther King, Jr. once noted, “is more devoted to order than to justice.” Turns out, when it comes to “neighborliness” and justice, you can’t have your cake and eat it, too.

Connor Cardoso ’19 can be reached at Please send responses to this opinion to and other op-eds to

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  1. Man with Axe says:

    The case you discuss is not really about the constitutional rights of the gay couple. Constitutional rights only apply vis-à-vis governmental action, not to the conduct of private individuals.

    What could apply to private conduct is anti-discrimination law. These laws, though, are not absolute (few are). In this case the anti-discrimination law conflicts with the baker’s first amendment freedoms. The question is: Which rights, not to be treated in a discriminatory manner, or to the free exercise of one’s religion, should prevail in this particular case.

    This is not an easy case. When rights conflict the way to resolve the issue often requires a utilitarian calculation. How much harm would be done to the gay couple who have to go elsewhere to buy a cake? How much harm is done more generally to the dignity of gay people? How much harm is done to religious people whose beliefs are being overridden by the interests of others? It’s a tough call, not at all as cut and dried as this article makes it appear.

    It is important to recognize that baking a wedding cake or being a wedding photographer or catering a wedding is a much more involved transaction than a simple sale at a store. If someone sincerely believes that such a wedding is sinful and doesn’t want to be involved in it, forcing him to do so anyway does cause harm.

  2. Frankly the legal system will never resolve illegal or legal discrimination, as you suggest. In fact, laws prohibiting discrimination in a society where culturally discrimination is rampant simply leads to more devious and undetectable forms of discrimination (don’t hire gays, make up some other excuse why the cake won’t be ready in time, bitterly Tell your children that gays are anti-Christian, whatever). The author’s point is (or should be) that these disputes need to be resolved culturally and societally, not Via the court system. Civil rights didn’t and don’t happen because of courts; they happen because enough people get properly educated and exposed and say it’s enough of hypocrisy. Until then this is just “another PC complaint.”

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