In June 2018, Justice Anthony Kennedy issued a 7-2 ruling in the case of cake artist Jack Phillips. Phillips was being sued for his refusal on religious grounds to design a cake to celebrate a same-sex wedding.
The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was a very big deal at the time and one of Kennedy’s last written opinions on the Supreme Court. The Colorado Civil Rights Commission had sued Phillips, a bakery owner, charging him with violating the state’s nondiscrimination laws.
The commissioners, a small handful of self-important bureaucrats, had made little secret in their public meetings of what they thought of Phillips’ Christian religion and its tenets. And in fact, their bigoted disparagement of Phillips’ constitutionally protected exercise of religion became a key part of Kennedy’s ruling.
“The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated [Phillips’] objection,” Kennedy wrote. Among other things, he cited the words of Commissioner Diann Rice:
This quotation could hardly be more absurd. “Freedom of religion” was used to justify slavery? By whom? “Freedom of religion” was used to justify repression of a minority religion and mass murder of its adherents in the Holocaust? Really?
Rice’s outburst revealed not only deep historical ignorance but also deep anti-religious hostility. This prompted Kennedy to note dryly, “[T]he Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.” Kennedy was consequently unwilling to let the commission exercise such power, given its clear prejudice against Christians.
Less than a year later, however, the commissioners were at it again. Despite having just lost in the Supreme Court, they decided they would use the power of the state to harass and persecute Phillips until he went out of business.
So, they took up a second complaint against Phillips: He had refused to create a cake for a “transition ceremony” for a lawyer who was changing his gender identity to female. This lawyer had deliberately placed his cake order after Phillips’ original case was well-known, for the express purpose of bringing further litigation against Phillips in order to ruin him.
Commissioners should have learned their lesson after Masterpiece Cakeshop. The only thing that made them back down this week was the threat of losing another major court case.
Part of the reason the commissioners chickened out was that new evidence emerged demonstrating just how little the commissioners had learned from Kennedy’s tongue-lashing — that their hostility toward religion remains alive and well.
This included a transcript from a commission meeting less than three weeks after Kennedy’s ruling. “I support Commissioner Diann Rice and her comments,” said Commissioner Rita Lewis. “I don’t think she said anything wrong. … So, I was very disappointed by the Supreme Court’s decision.”
In other words, commissioners still have a clear animus against Phillips and other Christians, whose religion they still find “despicable.” And thus they still cannot be trusted to uphold the law fairly.
Although it is nice to see the commission drop this case, again vindicating Phillips’ First Amendment rights, it’s a bit of a shame the commissioners didn’t hang in there. Had they pushed it back up to the Supreme Court, Kennedy’s successor, Justice Brett Kavanaugh, might have been willing to go even further than Kennedy in repudiating their anti-religious bigotry. It would have been nice to see the court create a longstanding precedent to nip this sort of bureaucratic repression in the bud.
Still, at least for now, the Colorado Civil Rights Commission’s evident bigotry has the salutary effect of neutering these little Napoleons. They can hardly bring similar cases now that they are so thoroughly tainted by their open hostility toward the free exercise of religion by business owners.
