The Denver Post

Religious right didn’t win. Yet.

- By Paul Waldman

In one of the most anticipate­d Supreme Court rulings of the year, involving the question of whether an anti-gay baker has to bake a cake for a gay wedding, the court Monday decided to punt. While you’ll probably see a lot of headlines proclaimin­g “Christian Baker Wins at Supreme Court!,” in fact the justices decided not to decide the underlying question of whether someone like that baker can discrimina­te against certain customers.

That question is a vital one, and it’s part of an incredibly ambitious campaign waged by the religious right and the Republican Party to essentiall­y turn conservati­ve Christians into a class with special rights. They haven’t won yet, but they could be on their way.

This case, called Masterpiec­e Cakeshop v. Colorado Civil Rights Commission, involved a Colorado law that bars discrimina­tion against gay people, and a Christian baker who refused to bake a wedding cake for a gay couple. The baker’s claim was essentiall­y that the law had to yield to his interpreta­tion of his religion; while the New Testament is notoriousl­y silent on the production of wedding cakes, he felt it would compromise his beliefs to have to perform the service for which he was in business, if it meant performing that service for a same-sex wedding. The couple was not asking that the cake be decorated with any pro-gay messages; it was the fact that it was for a same-sex wedding that the baker objected to.

The outcome that the plaintiff, religious right organizati­ons, the Trump administra­tion, and virtually the entire Republican Party wanted was one in which the Supreme Court would declare that religious people — particular­ly Christians — can pretty much pick and choose which laws they want to obey, so long as they can cite a religious basis for their objection. That was not what the court gave them.

The seven justices who agreed on this ruling (all the conservati­ves, plus Stephen Breyer and Elena Kagan) managed to avoid the underlying issue by pointing to comments made by members of the Colorado Civil Rights Commission, which adjudicate­s these kinds of claims in the state. Even though there were some complex First Amendment questions at issue — is baking and decorating a cake simply a commercial transactio­n or is it an artistic expression? — they set those questions aside and ruled that statements made by commission­ers in hearings demon- strated a hostility to the baker’s religion, and if their decision was based on that hostility, it’s unconstitu­tional.

That leaves all the fundamenta­l questions unanswered. As Ian Millhiser put it, “The opinion reads as if the central matter at issue was not so much about resolving a conflict between religious bakers and same-sex couples as it was about an urgent need to police the tone of civil rights commission­ers.” Because the court didn’t rule on the fundamenta­l issues, we can be sure that more lawsuits will be filed in which Christian business owners want an exemption from antidiscri­mination laws. And they have reason to believe they might get it.

The religious right has argued, with some success, that religious people should be able to exempt themselves from laws they find disagreeab­le. In the Hobby Lobby case, decided in 2014, the Supreme Court ruled that a private corporatio­n should be able to exempt itself from the law — in that case a requiremen­t of the Affordable Care Act that insurance plans include coverage for contracept­ion — because they claimed they had a religious objection to it.

The critical context here is that the religious right is seeking this kind of special status for themselves precisely because their views are in decline. Antigay sentiment is becoming less and less acceptable. The patriarcha­l ideology at the heart of conservati­ve Christiani­ty is being increasing­ly rejected by society. The proportion of nonbelieve­rs in America is growing rapidly.

This is why they’ve been so incredibly enthusiast­ic about Donald Trump, sometimes even claiming that God engineered Trump’s victory as a blessing to American Christians. The rest of us might look at the loyalty that white evangelica­ls show Trump and see hypocrisy, but you’re missing the point. Why doesn’t it matter that Trump is not religious himself or that he indulges at least three or four of the seven deadly sins every day? It’s because Trump is the most nakedly tribal politician we’ve ever seen.

The real reason the Masterpiec­e Cakeshop case ended without resolving the underlying issues was that Anthony Kennedy, who wrote the majority opinion, is unwilling to restrict the rights of gay people in order to enhance the privileges of conservati­ve Christians. But they’ve got four justices who are. All they

need is one more.

 ?? Paul Waldman is an opinion writer for the Plum Line blog. ??
Paul Waldman is an opinion writer for the Plum Line blog.

Newspapers in English

Newspapers from United States