The Supreme Court is celebrating June, Gay Pride month, by validating the religious right’s claim to a constitutional right to discriminate against gay people.
In Masterpiece Cakeshop v. Colorado Civil Rights Commission, a seven-justice majority—led by Justice Anthony Kennedy and including justices Stephen Breyer and Elena Kagan—determined that Colorado unconstitutionally discriminated against Jack Phillips, a baker who refused to make a cake celebrating a same-sex wedding—that of Charlie Craig and Dave Mullins—because of his sincerely held religious beliefs.
The Court weighed “the authority of a State … to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services” and “the right of all persons to exercise fundamental freedoms under the First Amendment.” It came down on the side of finding that the First Amendment protects hate, so long as it’s religiously based.
The ruling’s deliberately narrow, as narrow as you’ll ever see: The decision hangs not on the law but on the Colorado Civil Rights Commission’s failing to demonstrate religious neutrality in its consideration of Phillips’ claim. The support? The commission decided other cake-expression cases differently, and some commissioners seemed hostile.
Kennedy builds in an out by specifying that this ruling concerns only how the commission handled this case; “some future controversy involving facts similar to these” could have a different outcome.
That’s only to say this ruling is not as fatal as it could have been. There’s no silver lining.
Kennedy refers to the “dignity and worth” of gay persons and gay couples, to the recognition that we cannot be treated as “social outcasts” or inferior in those respects, but in the same paragraph writes, “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” These two statements are as inconsistent as any ever written.
When Kennedy writes, “Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case,” he legitimizes homophobia. It’s also proof that he truly doesn’t recognize the equal dignity and worth of gay people. There’s precedent for what happens when the right of persons equal in dignity and worth to be treated as such clashes with others’ religious claims to a freedom to discriminate.
Rewind to 1964: Maurice Bessinger, Baptist head of the National Association for the Preservation of White People, refused to serve African Americans. When sued by an African-American woman under the Civil Rights Act, he claimed it violated his First Amendment rights because "his religious beliefs compel[led] him to oppose any integration of the races whatever." Bessinger lost his case.
Kennedy & Co. could have found issue with the Colorado commission’s treatment of Phillips’s case without affirming the legitimacy of his views. They chose not to do so. Moreover, the opinion strains to find the derision for Phillips’s religious beliefs it claims dictates the outcome of the case. For example, Kennedy indicts the following statement by a commissioner:
“Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the [H]olocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination.And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
Kennedy writes, presumably outraged, that “The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” It’s hard to imagine that Kennedy would have condemned the commission as fiercely, much less valorized Phillips, had Phillips been asserting Bessinger’s religious defense of segregation.
Kagan wrote a concurrence, joined by Breyer, that reiterates Kennedy’s narrow reasoning. She does slightly better only by centering the principle the majority pays lip service to, but fails to realize:
“[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
Like the majority, Kagan doesn’t deign to do more than refer to a state’s prerogative to protect gay persons; there’s certainly no hint that gay people enjoy an inherent right to be free of discrimination.
Justice Clarence Thomas writes separately as well, joined by Justice Neil Gorsuch, to say that while the majority only found that Phillips’s right to free exercise was violated, he’d take issue with the law itself as violating his First Amendment free speech rights.
Justices Ruth Bader Ginsburg and Sonia Sotomayor’s concurrence makes for bittersweet reading. They’re absolutely right; the writing is elegant, the reasoning crystalline. And the seven other members of the Court specifically rejected it.
It takes Ginsburg just a few sentences to dispense with the two pillars upon which the majority’s opinion rests.
The different outcomes the Court features [in other cases before the Commission] do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decision making entities considering this case justify reversing the judgment below.
The other cases, notes Ginsburg, weren’t the same at all: Craig and Mullins asked for a wedding cake; the three other cases the majority cited, all the work of one man, William Jack, involved requests for specific messages and decorations, i.e., “an image of two groomsmen, holding hands, with a red ‘X’ over the image.”
Ginsburg draws the simple distinction the majority insistently neglects: The bakers in these other cases would have refused to make the cakes no matter who asked for them; Phillips refused to make Craig and Mullins’ cake because of who they are.
Phillips would not sell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied.
It doesn’t matter whether or not Phillips would have sold Craig and Mullins a birthday cake or cookies. The point is that he refused to provide a good or service to them that he would have provided a heterosexual couple.
Ginsburg’s also unimpressed by the purportedly hostile remarks of Colorado’s commissioners. Even if you read them as hostile, “The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.”
Ginsburg signs off with a classically mild insinuation that her colleagues are senseless:
For the reasons stated, sensible application of [the Colorado Anti-Discrimination Act] to a refusal to sell any wedding cake to a gay couple should occasion affirmance of the Colorado Court of Appeals’ judgment. I would so rule.
Judicial politics being what they are, what was 7-2 could have been 5-4 had it been Judge Merrick Garland, or another Obama appointee, rather than Gorsuch on the bench. When in the minority, justices must make compromises, a role that Kagan prides herself on filling.
It’s not just that courts matter: Every seat matters, from district court judges who decide solo or guide a jury through that process to appellate and Supreme Court jurists. Every voice changes the conversation; the balance of votes decides compromises.
Given the relative youth of the conservatives on the Supreme Court and the likelihood Trump will get at least one more nomination, this setback could last a lifetime.
