A victory for freedom of religion -- sort of

Finally! A decision in support of individual rights and common sense. From The Wall Street Journal:

Supreme Court Sides With Baker Over Wedding Cake for Same-Sex Couple

Court rules for baker who refused to make a cake for a gay wedding, but sets no broad precedent

By Jess Bravin | Updated June 4, 2018 11:17 a.m. ET

WASHINGTON—The Supreme Court ducked a decision Monday on whether religious merchants can deny service to gay people, finding that a Christian baker didn’t get a fair hearing before a state civil-rights commission but issuing no broader precedent.

The ruling, by a 7-to-2 vote, is a victory for Jack Phillips, who turned away Charlie Craig and Dave Mullins when they came to order a wedding cake from his Masterpiece Cakeshop in Lakewood, Colo. The couple filed a complaint with the Colorado Civil Rights Commission, which found the baker in violation of state law prohibiting discrimination based on sexual orientation.

Still, the opinion by Justice Anthony Kennedy went no further than saying the commissioners, based on comments in hearing transcripts, had failed to give “neutral and respectful consideration” to Mr. Phillips’s claim that his constitutional right to religious exercise entitled him to disregard the state civil-rights law.

The issue, if not this specific case, will return to the lower courts for additional litigation. Federal law doesn’t specifically prohibit discrimination against gay people, but more than 20 states and many local governments have enacted such measures.


The case was Masterpiece Cakeshop, LTD, et al, v Colorado Civil Rights Commission, et al, and the decision can be found at the embedded link.

The ruling of the Court was actually fairly narrow, based less on the conflicts between anti-discrimination laws and the free expression of religion than it was on the biased and hostile attitudes of the Civil Rights Commission in taking their decision; some commissioners expressed openly hostile attitudes toward Jack Phillips, the owner of Masterpiece Cakeshop, as they were taking their decision.

On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated:

“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, 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.”

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation¹


Still, it must not be minimized: had the commissioners not spoken so blatantly hostilely toward Mr Phillips, the case could have been decided differently. Had the Commissioners treated Mr Phillips case with a record of at least perceived neutrality, this decision might not have gone his way. And, given the way the decision is written, I suppose that the Commissioners will keep their mouths shut when it comes to expressing hostility to religion, but could still have such unspoken hostility guiding their future decisions.

Justice Ginsberg wrote, in dissent:

Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the requested product would literally display.²

Such a qualification bases her position on the reasons for a free speech objection; she would protect a baker who refused to make a cake for a Ku Klux Klan rally, but not one who objected to same-sex marriage.  Apparently, for Justice Ginsberg, only ‘good’ reasons — meaning: reasons of which the left approve — qualify.

However, the most important part of the decision that I find is something that is almost an aside:

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.³


This has always been my greatest concern with the legalization of homosexual marriage, that it would be used as a club to attack the Church. This paragraph should protect the Church against attempts to use anti-discrimination law against them should a homosexual couple try to force a church to perform a same-sex wedding, though it might not be a perfect shield against civil suits. Churches which refused to perform same-sex marriages might still find themselves with legal liability if they rent out facilities for weddings that are not performed by their own clergy, yet declined to do so for a homosexual wedding. And the language Justice Kennedy used — “it can be assumed” — is particularly mealy-mouthed; we all know what ‘assume’ can mean.
Cross-posted on The First Street Journal.
¹ – Pages 13 and 14 of the .pdf file of the Opinion of the Court.
² – Page 6 of the .pdf file of her dissent.
³ – Page 10 of the Opinion of the Court.


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