Court’s gay cake victory may not last very long
In any traditional kitchen, the mixture of sugar, eggs, and flour means something good is about to happen. But those same ingredients have produced a great deal of consternation in America’s judicial system.
In a 7-2 decision released on Monday, the U.S. Supreme Court sided with Colorado baker Jack Phillips, who in 2012, citing religious objections, refused to provide a cake for a gay wedding in the state. At the time, Colorado did not recognize same-sex marriages, and the Supreme Court had not yet issued its landmark opinion essentially legalizing same-sex marriages across America.
Monday’s Masterpiece Cakeshop decision is the mirror image of the Court’s 2015 Obergefell decision that overturned state and federal anti-gay marriage laws. Obergefell was a bad decision that produced a good result; conversely, this week’s ruling was a legally sound decision that, at least in this Colorado instance, could lead to gay couples having to go elsewhere to get their wedding cakes made.
At first glance, the case looked like a textbook example of two rights butting heads: The right of the gay couple to be free from discrimination and the First Amendment right of the baker not to be compelled to express himself in violation of his religious principles.
But rather than address the broad array of religious freedom claims that have been percolating across the nation (many of them gay wedding-related), the majority ruled very narrowly, excoriating the Colorado Civil Rights Commission for mocking Phillips’ religious beliefs. One commissioner commented that “religion has been used to justify all kinds of discrimination throughout history,” citing slavery and the Holocaust as examples. This commissioner deemed it “despicable” for people “to use their religion to hurt others.”
The court’s decision, written by Justice Anthony Kennedy, rightly condemned the commission for denigrating Phillips’ sincerely held Christian beliefs. Kennedy noted the inappropriateness of that sentiment given the commission is charged “with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation.”
As the court noted, Phillips’ case lines up nicely with another contemporaneous case that had been before the Civil Rights Commission in which a customer named William Jack had, citing his religion, tried to hire three bakeries to make him a cake with a message denigrating gay persons and gay marriage. In each case, the bakeries had declined to do so, believing the message to be offensive and distasteful. The commission upheld the right of the three bakeries in refusing to bake a cake they found abhorrent, even though the customer complained it was an infringement on his religious beliefs.
In his concurring opinion, Justice Neil Gorsuch argued the faulty logic in allowing bakers to refuse to serve Jack but forcing Phillips to bake one for a same-sex couple. “Only by adjusting the dials just right — finetuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views,” wrote Gorsuch, “can you engineer the commission’s outcome, handing a win to Mr. Jack’s bakers but delivering a loss to Mr. Phillips.”
While the decision is a victory for religious liberty, it is likely a shortlived one. Having been decided on such a narrow thread (hence the unexpected 7-2 margin), the more expansive issue of religious freedom is almost certain to come before the court as more states see their Religious Freedom Restoration Acts challenged.
For those who believe in the right to practice one’s religion without government interference, let’s hope this week’s decision is merely an appetizer and not itself a dessert.