Although the Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission is indeed a victory for religious rights, it is a shallow one.
In its 7-2 decision, the Supreme Court merely upheld the baseline of any free society: Government may not blatantly discriminate against a religious person, act in a hostile manner towards him, or deem his views offensive to the government.
Over the last six years, all of these things were perpetrated against Jack Phillips. The Colorado Civil Rights Commission led the charge in casting a shadow over those who dared to exercise their religion in Colorado, and the Colorado Court of Appeals was no better.
Yet, as SCOTUS pointed out in its 7-2 decision in favor of Phillips, the state has no right to declare a particular religious tenet or belief “offensive” and accordingly punish the holder. The Masterpiece decision ensures religious liberty will live to see another day, but there is little strength in the majority’s ruling.
However, in his concurring opinion, Justice Neil Gorsuch demonstrated he is the defender freedom-loving Americans need. A Supreme Court justice is tasked with protecting the constitutional rights of the “little guy” – particularly the one who is subject to government overreach. Without justices who value the real distinctions of freedom provided in the Constitution, the boot of government oppression will come down on the heads of the people and eventually, people of religion will be pushed out of the marketplace entirely.
In his opinion, Justice Gorsuch proved three things. First, he is willing to take on the Court’s liberals. Not only was his opinion in direct contradiction to committed leftists Ruth Bader Ginsburg and Sonia Sotomayor, but it also was a head-on confrontation with Justice Elena Kagan’s ill-conceived concurring opinion. Our nation needs conservatives on the Court who will confront the dangers of progressivism without fear. Justice Gorsuch has proven he is up to the task.
Second, Justice Gorsuch left no doubt that he can make well-reasoned, winsome arguments, distinguish between precedents and the facts at hand, and use these precedents to inform accurate applications of the Constitution. In his concurring opinion, Justice Gorsuch used a nearly identical list of cases that the majority used, but he came to a rightfully broader protection of religious liberty, referring to “this country’s commitment to serving as a refuge for religious freedom.” When it comes to defending our most precious and foundational freedoms, there is no need to shrink back. Justice Gorsuch has demonstrated that he will not.
Finally, and most on point in Masterpiece, Justice Gorsuch made a logic-rich argument regarding how “neutral” laws can still be used to discriminate against people of religion when they do not “afford…faith neutral respect.” He discussed the attempts of both the Colorado Civil Rights Commission and some of his colleagues on the Court to gerrymander the legal standards and specific factors so they could reach a conclusion that condemned Mr. Phillips. When heads are demanded on a platter, a just law can be transformed into an unrecognizable beast, and Gorsuch flatly rejected such an approach as un-American at its core.
He called out those in power who would bend to the dictates of secular moral convictions but recoil at the assertion of religious convictions like those of Jack Phillips and condemn them with the force of law.
Justice Gorsuch then proceeded to dismantle Justice Kagan’s anti-religious assertion piece by piece. He took apart her claims of “generality” that would force Phillips and others like him to see his artistic expression as “just a wedding cake” that must be forcibly baked for any and all. Justice Gorsuch highlighted how Justice Kagan was attempting to reason a way to her own standard of “generality,” and that such reasoning cannot be just or constitutional.
It is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding cake is just like any other—without regard to the religious significance his faith may attach to it—than it would be for the Court to suggest that for all persons sacramental bread is just bread or a kippah is just a cap.
It is no more appropriate for the U.S. Supreme Court to tell Mr. Phillips that a wedding cake is just like any other — without regard to the religious significance his faith may attach to it — than it would be for the Court to suggest that for all persons sacramental bread is just bread or a kippah is just a cap.
In his short time on the Court, Justice Gorsuch is proving himself to be a rational and well-reasoned ally of freedom lovers throughout our nation. We need more like him.
Kristi Burton Brown, an associate scholar with the Charlotte Lozier Institute, is an attorney focused on First Amendment and sanctity of life issues.
