Colorado baker Jack Phillips won an incredible victory at the Supreme Court Monday morning in a 7-2 decision that really should have been 9-0 like most constitutional cases, unless politics and activism get in the way. Despite the Supreme Court’s unnecessarily narrow holding and a blatant invitation from Justice Anthony Kennedy for future litigants to submit the same controversy with different, less obviously biased facts, this case is still a significant win for conservatives in Colorado and other states with similarly hostile government commissions with the power to adjudicate claims of discrimination in public accommodations.
I’ve written previously about the overt animus and bias displayed by the Colorado Civil Rights Commission in particular, and those of us who read the oral argument transcript predicted a narrow win for Jack Phillips, but hoped the Supreme Court would draw a more broad and firm limiting principle and protect religious liberty.
While I agree entirely with many of the well-written analyses of the broad implications for America generally, Colorado specifically should take note and seriously think about curing the flaws with the commission in light of this opinion.
The commission in Colorado (like many other civil rights commissions in other states) is a quasi-judicial body of non-elected, non-judicial non-attorneys, who still are somehow deemed fit to make findings of fact and conclusions of law. Had Jack’s case proceeded directly to a traditional judicial forum, perhaps this case would never have needed to make its way to the Supreme Court.
Notably, the Colorado legislature attempted just last month to amend the commission and make it a more neutral arbiter. The one-vote Republican-majority Colorado senate advanced several reasonable and neutral measures to reform the commission, but the Democrat-controlled Colorado House blocked every single one. This case highlights how important it is to have rule of law conservatives (and not agenda-driven activists) at every level and in all branches of government.
If our society is to follow the Constitution and the rule of law, we must recognize that the First Amendment does not give us the right to free speech or free exercise of religion, but rather requires the government to protect and preserve it. Alexander Hamilton recognized this important distinction in Federalist No. 84, arguing that the Bill of Rights is actually an unnecessary redundancy because the Constitution does not confer power on the government to restrict fundamental freedoms. He used the example of freedom of the press, rightly observing that the Bill of Rights doesn’t confer a regulating power on the federal government, but simply textually preserves certain fundamental rights that governments most often infringe.
The Kennedy-written 7-2 majority dealt a blow to open hostility against religion. This is encouraging and precisely why our Founders enshrined the First Amendment in our Bill of Rights. Regrettably, the Supreme Court ducked ruling on principle, missing an opportunity to clarify First Amendment protections with certainty so that other states with star chambers like civil rights commissions would be properly constrained to the rule of law.
Instead, because of Kennedy’s very narrow fact-based decision, the decision simply means that hostility will just become less overt and the bias less pronounced on the record. Kennedy laid out a trail of breadcrumbs for future litigants to bring cases with the same controversy but different facts and, presumably, a different outcome. This is why states should create options for businesses and individuals hauled in front of these commissions to have the option of bypassing them and proceeding directly to a traditional judicial forum with proper due process protections.
This case clearly evidences why state legislatures also should re-evaluate our anti-discrimination public accommodation laws. Their negative and unconstitutional impact on freedom of speech is a direct result of Employment Division v. Smith, which Justice Neil Gorsuch noted, “remains controversial at many quarters.”
Justice Clarence Thomas’ opinion should have been the majority one. He wrote, “Although public-accommodations law generally regulate conduct, particular applications of them can burden protected speech,” and cited Hurley v. Irish-American GLIB Assoc., which properly held that a public accommodations law cannot force the sponsor of a parade to include LGBT expression because that would violate the sponsor’s freedom of speech.
Thomas said, “Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated — the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to [citing Hurley] “bear witness to these facts or to affirm a belief with which he disagrees.”
America is going to be faced with the merits of this type of case at some point down the road. It is incumbent upon Colorado and other states to actively take steps to actually cure this hostility, amend anti-discrimination laws to allow freedom of conscience, provide transparency to ensure hostility is not simply secretive, and provide meaningful access to justice in the form of preserving religious liberty and all constitutional protections before a future Supreme Court has to deal another significant blow to an agenda-driven executive agency bent on persecuting Christians for their faith.
Jenna Ellis (@jennaellisJDFI) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is Director of Public Policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution.
