The Supreme Court's 7-2 ruling Monday siding with a Colorado baker who declined to bake a cake for a gay couple based on religious grounds just opened up the nation to a raft of cases that will keep the issue of LGBTQ freedoms alive politically for a generation to come.
Make no mistake: The decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission is a major setback for the basic dignity of gay Americans. Yet legally speaking, the ruling itself did not rely on broad Free Speech Clause arguments or even come close to settling questions about the constitutional limitations of religious-based bigotry. That inconclusiveness has left-leaning legal analysts writing headlines as varied as "Gay Americans have little to fear from the Supreme Court's Compromise in Masterpiece Cakeshop" from Slate's Mark Joseph Stern to our own Rebecca Pilar Buckwalter Poza's "The Supreme Court just set gay rights back a lifetime."
In simple terms, the high court ruled in favor of Christian baker Jack Phillips not because of his ultimate claim that his religious speech trumps LGBTQ freedoms, but because the Colorado Civil Rights Commission exhibited hostility and bias toward Phillips for being homophobic. As Stern writes:
In the end, Masterpiece Cakeshop barely resolves anything, and doesn’t even touch the free speech claim at the center of the case. Instead, it punts that question, leaving lower courts (and American society) to continue fighting about how, exactly, Justice Anthony Kennedy should feel about it.
The problem with leaving that question for another day is the fact that Justice Kennedy—often the court’s swing vote on LGBTQ issues—won't be there for another evolutionary decade of liberalizing decisions that ultimately moved the justices from striking down anti-sodomy laws nationwide in the court's 2003 Lawrence v. Texas ruling to its historic 2015 Obergefell v. Hodges decision legalizing same-sex marriages across the country.
Instead, the court's makeup suggests it will be trending in the opposite direction for the foreseeable future, casting an ominous shadow over the 7-2 decision that left Justices Ruth Bader Ginsburg and Sonia Sotomayor as the lonesome defenders against religious oppression. As Buckwalter Poza notes:
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.
Thus, the Masterpiece ruling just gave religious conservative groups the cracked door they were looking for to mount an all-out offensive for their right to discriminate against, well, anyone they don't like—starting with LGBTQ Americans, but certainly not ending there.
In the immediate, that's very bad for the basic freedom and equality of gay and transgender individuals across the nation. Groups that believe in absolute religious primacy like Alliance Defending Freedom (ADF), which represented Phillips at the Supreme Court, will now take that cracked door as an invitation to challenge LGBTQ rights at every turn. Their crusade won't be confined to states like Colorado, which had actually enacted statewide protections against LGBTQ discrimination. With their newfound Supreme Court mandate, religious zealots will target states like Indiana, which currently has a hodgepodge of conflicted policies after GOP lawmakers passed arguably the broadest religious freedom law in the nation in 2015 legalizing religious-based discrimination against LGBTQ individuals and others. Following the national uproar over the statute, lawmakers passed a so-called "fix" stipulating that religious motivations couldn't be used as a defense against discrimination. However, bias against LGBTQ individuals was only officially designated as "discrimination" in about a dozen localities in the state that had passed nondiscrimination protections for gay and transgender Hoosiers.
In such a state, the Supreme Court ruling will invite conservative groups to chip away at rights for same-sex couples and others, explains Rachel Tiven, the executive director of the pro-LGBTQ group Lambda Legal.
"Not so long from now, will a gay couple from Evansville, Indiana, be able to get married?" Tiven queries. "Well, sort of—not in their own hometown, because everyone there has a [religious] exemption and won’t file their license. They can drive three hours to Indianapolis, where on every other Tuesday there’s someone at the clerk’s office who will help them. But for social security paperwork they’ll have to go to another state, because none of the people at the Social Security Administration office will file their papers."
"Sound far-fetched?" Tiven adds. "That’s abortion today."
And that's the struggle the LGBTQ community is now facing.
Many LGBTQ advocates are painting Justice Anthony Kennedy's kind words for LGBTQ Americans as a partial win for fairness and equality.
“In today’s narrow ruling against the Colorado Civil Rights Commission, the Supreme Court acknowledged that LGBTQ people are equal and have a right to live free from the indignity of discrimination,” Human Right Campaign president Chad Griffin said in a statement. “Anti-LGBTQ extremists did not win the sweeping ‘license to discriminate’ they have been hoping for.”
But Griffin’s rosy interpretation says nothing of the very real consequences the ruling will have. Even Slate's Stern acknowledges how useless Kennedy's poetry will be in terms of reining in the religious right.
None of Kennedy’s pro-gay tolerance signaling will prevent ADF and its allies from touting Masterpiece Cakeshop as a rout for anti-gay religious liberty.
As Buckwalter Poza notes:
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.
ADF and their brethren will only see one half of Kennedy's conflicted prose and they will be using it as a road map for their continued crusade to legalize religious-based bigotry.
"ADF and its henchmen are looking to undermine marriage equality,” Lambda Legal's Tiven explains. “They threw free exercise and artistic expression at the wall to see what stuck, and today the Supreme Court said, 'Go with free exercise – that’s the ticket.’”
Will it be a “galvanizing” moment for the LGBTQ movement, she posits. “It better be."
To Tiven's point, this is no time for queer advocates to declare we dodged a bullet and breathe a sigh of relief. Religious bigots are getting ready to mount a full-scale offensive.
If there's a silver lining here, it's that the religious right will begin making their most bigoted case against equal treatment for gay and transgender Americans at exactly the moment when the least religious and most pro-LGBTQ generation the country has ever known is coming of age.
In other words, while the trend of the courts might be working against LGBTQ freedoms, the politics on the ground will be working for us. But gay and transgender activists will only be able to harness that political energy if our advocates are willing to admit when the law has done us wrong.
Bottom line: This ruling prioritized the supposed victimization of Phillips over his discrimination against David Mullins and Charlie Craig, the couple he told to get lost as they were preparing to celebrate the most sacred union of their lives.
No matter what kind words Justice Kennedy may have written about the "dignity and worth" of LGBTQ people and their relationships, he memorialized religious-based discrimination when he elevated the supposed persecution of Phillips over that of Mullins and Craig.
ADF will now take their "free exercise" ticket and see how many different ways they can use it to justify LGBTQ discrimination and how many other groups they can apply it to.
Now is the time to sound the alarm bells for a generation of foot soldiers who are primed to side with equal dignity and humanity for all Americans if they are given the chance. But if LGBTQ advocates fail to let them know where the court and the religious right are headed, the movement is setting itself up for the same decades-long erosion of Obergefell that beset the abortion rights movement following Roe v. Wade.
