This Supreme Court term’s blockbuster case about whether a state can punish a baker who does not want to create a cake for a same-sex wedding raised important questions about the scope of public accommodation laws, free speech, and free exercise of religion. It brought the conflict between anti-discrimination law and religious freedom that Justice Clarence Thomas predicted when the Supreme Court legalized same-sex marriage back to 1 First Street.
Unfortunately, in deciding the baker’s case today, the high court has abandoned these issues for another day and another case.
[Supreme Court rules for Colorado baker who refused to make cake for same-sex wedding]
Instead of resolving the broad legal questions, the majority seized on two peculiarities of this particular case to reverse the Colorado Court of Appeals decision punishing the baker. First, during the course of its investigation and decision, commissioners on the Colorado Civil Rights Commission expressed their views that religious practices are incompatible with doing business in Colorado. One commissioner went so far as to declare a belief that freedom of religion is “one of the most despicable pieces of rhetoric that people can use … to hurt others.” The Supreme Court majority held that the commission’s animus toward religious people was inconsistent with the First Amendment’s protection of religious freedom.
Second, the majority explained that the civil rights commission had not reacted with hostility to bakers who refused to bake a cake that conveyed disapproval of same-sex marriage. In those cases, the commission decided that those bakers had a conscience-based right to object to cakes that had derogatory or discriminatory content. The commission’s different treatment of the conscience-based objectors from the religious-based objector further illuminated the commission’s impermissible animus toward religion.
This is a victory for Masterpiece Cakeshop, but it is a narrow one. This baker was punished unfairly. However, states can still punish wedding vendors who do not want to participate in same-sex weddings—as long as they’re not overtly hostile to religion while they do it. This decision extends an incremental protection to religious Americans and reminds everyone what should have been obvious all along: at the very least, you’re entitled to a neutral arbiter when the state tries to put you out of business.
Unfortunately, we are destined to see the broader questions again; is cake-making a form of speech? Is it a religious practice or belief? How about photography? Have public accommodation laws gone to far?
Both sides of this culture clash will continue to tee up cases as they seek a favorable resolution at the high court. The justices just avoided an opportunity to derail such litigation before it starts.
Gabriel Malor (@GabrielMalor) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an attorney and writer in Washington, D.C.
