The Supreme Court’s 7-2 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission has been widely described as narrowly tailored (as with so many recent decisions that have big political ramifications). But while Justice Anthony Kennedy’s majority opinion focuses heavily on Colorado’s unfair treatment of plaintiff Jack Phillips and leaves alone the case’s First Amendment question, it also represents a significant victory for proponents of religious religious liberty and freedom of conscience. Even if it seems likely that those core issues will end up before the court again.
Phillips’ ordeal began in 2012, when he declined to bake a custom wedding cake for Charlie Craig and David Mullins. Phillips is a sincere and committed Christian who also doesn’t bake Halloween-themed goods and has turned down cake orders meant to celebrate divorces. That didn’t matter to the Colorado Civil Rights Commission, which initiated a hearing before an administrative law judge after the couple complained. The administrative judge concluded that Phillips’s artistic skill was not protected speech and the state Civil Rights Commission upheld that ruling. The majority, which included Stephen Breyer and Elena Kagan, paid close attention to how the commission treated Phillips and found the commissioners’ behavior wanting. One of them went so far as to compare Phillips, whose father was part of the force that liberated Buchenwald, to a Nazi. (For more on Phillips and the specifics of his case, see my interview with him from last summer.)
The court ruled that the government has an obligation to act neutrally with regard to religious beliefs when evaluating whether forcing someone to violate those beliefs is ultimately in the public interest, and that that the commission did not do so in regard to Phillips. The majority opinion written by Anthony Kennedy, the court’s swing vote and author of Obergefell majority opinion, really hammered this point home:
This is hardly the outcome religious freedom advocates were hoping for, in what is otherwise a significant win for their cause. However, this smackdown of the hostility displayed shouldn’t be dismissed as a technicality, either. Certain elements of the left were pushing for declaring certain commonly held religious beliefs to be defined as bigotry, in what has become an accepted legal tactic. Recall that Tim Gill, an architect of the gay marriage legalization effort, and the current push for SOGI (sexual orientation and gender identity) laws, told Rolling Stone that the intention behind these efforts was to “punish the wicked.” Monday’s ruling means that mounting legal arguments and PR campaigns without acknowledging the open hostility to religion may prove tricky and outright damaging to the cause going forward.
The decision essentially punts on the central questions of the case: Is Jack Phillips’s artistic skill in baking cakes that he sells protected speech, or is it merely commerce with no expressive significance? Here Kennedy simply lays out the dilemma neutrally without weighing in:
However, that Kennedy understands and even outlines the distinction here is a win for religious freedom advocates. The argument against letting business owners refuse to perform services that violate their beliefs has long hinged on the application of public accommodation laws, which are designed to broadly prevent discrimination. However, there’s a fundamental difference between, say, an African American sitting at a lunch counter asking for the same symbolically insignificant sandwich being served to the white guy next to him, and a customer demanding a custom product that requires its creator to express a specific opinion, even if it goes against his beliefs. Gay rights activists have taken the public accommodation argument to such an extreme that there is a case in Kentucky against a Christian T-shirt printer who declined to print shirts for a gay-pride festival. If public accommodation laws can force the owner of a literal printing press to print words he doesn’t agree with, it would seem to undercut the First Amendment considerably. (The Kentucky Court of Appeals ruled in favor of the printer last year, though the case is ongoing.)
Kennedy also noted that the issue of conscience protections for business owners must be enforced fairly, and this raises significant questions about the state effectively telling you what you can and cannot say:
Finally, it’s worth noting the fact the case was narrowly tailored is not necessarily a bad omen for religious freedom advocates. That the case was more narrowly decided likely contributed to the fact that it was a 7-2 decision, which sends a signal suggesting the encouraging predicates described above for settling the bigger free expression questions are durable.
That’s key because it seems unlikely that the court is going to dodge the question of what constitutes free expression here forever. In fact, there’s a similar case in Washington state involving a florist, Barronelle Stutzman, who was sued for refusing to do the flowers for the wedding of a regular customer she’d otherwise been serving for yearsr. Ilya Shapiro, a constitutional lawyer at the Cato Institute observes, “Indeed, the petition of the Washington florist, Arlene’s Flowers v. Washington, is currently pending before the court; with today’s narrow ruling, the justices can’t simply send that case back to the state supreme court for reevaluation.” While this ruling is a definite win for religious liberty advocates, much remains unresolved and it seems likely the court will be forced to address the issues it sidestepped here before long.
