On Monday, the U.S. Supreme Court ruled 7-2 in favor of Jack Phillips, the Colorado baker who in 2012 refused to make a wedding cake for a same-sex couple. Phillips, an expert baker who has owned his business, the Masterpiece Cakeshop, for 24 years, concluded that his Christian faith wouldn’t allow him to create a custom-baked cake for two men wishing to celebrate their matrimonial union.
In 2012 the Court’s Obergefell decision hadn’t yet happened, and indeed Colorado law didn’t yet recognize same-sex marriage. The two men, Charlie Craig and Dave Mullins, were planning to marry in Massachusetts (where same-sex marriage was already legal) and celebrate their union back in Colorado. Rather than simply picking a different bakery and perhaps complaining about Masterpiece Cakeshop on Yelp, they took their complaint to the Colorado Civil Rights Commission. The commission investigated the case and found that Phillips had violated the couple’s rights—this despite the fact that the baker’s understanding of marriage was at that time perfectly in keeping with Colorado law.
The commission’s insistence that Phillips had violated the Colorado Anti-Discrimination Act was not prima facie unreasonable. That law forbids an individual or business to “refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.” The addition of “sexual orientation” was added only a decade ago, but there it is in black and white.
We suspect most fair-minded people feel there’s something unjust about coercing a baker to create a cake that, for reasons of deeply held conviction, he doesn’t want to create—especially when the same-sex couple in question needed only try the next bakery in the phone book. But the law was clear: No discrimination based on sexual orientation.
Phillips’s legal team made two arguments. First, that the Civil Rights Commission applied the law in a way that violated his First Amendment right to free speech—an argument premised on the tenuous ideas that (a) cake-baking is an art and (b) that art is speech; and second, that the state prohibited Phillips’s First Amendment right to the free exercise of religion.
Most observers expected a 5-4 decision with Justice Anthony Kennedy the deciding vote, but in this instance Kennedy managed to persuade two of the court’s liberals, Justices Elena Kagan and Stephen Breyer, to agree that Colorado’s Civil Rights Commission had evidenced hostility to Phillips’s religious convictions in arriving at its decision and therefore abridged his First Amendment rights. Kennedy quotes, for example, a state commissioner comparing Phillips to those who used freedom of religion to justify slavery and the holocaust. (“Hostility” is one word for it. “Idiotic” is another.)
Kennedy was right to contend that the Commission unfairly disparaged Phillips for his religious beliefs, but Kennedy’s is a procedural argument, not a substantive one. He, together with Kagan and Breyer in their concurring opinion, appear to suggest that if the Commission hadn’t been so overtly hostile to Phillips, the substance of its decision would have been perfectly constitutional. The dissenters, Justices Sonia Sotomayor and Ruth Bader Ginsburg, held that the commission’s hostility was irrelevant.
That’s five justices who, under different circumstances, would be perfectly willing to endorse a governmental authority punishing a business for refusing to take part in a marriage ceremony that until a few years ago was illegal in every state. Better get with the times, people!
The question for conservatives and constitutionalists is this: If laws like Colorado’s anti-discrimination statute ban individuals from withholding goods and services from people based on sexual orientation, how can bakers and caterers and florists and wedding planners legitimately refuse to serve same-sex patrons? The legalization of “marriage equality” has given this question added urgency, but it was bound to arise sooner or later as a society dominated by left-liberal hyper-individualism added more and more protected identities to anti-discrimination statutes. Related questions will continue to beset us. Why, to take the most obvious example, should a clergyman be permitted to refuse participation in same-sex marriage ceremonies? Kennedy in his opinion says “it can be assumed” that a clergyman couldn’t be compelled to perform this service, but no such thing can be assumed.
Religious and individual liberty survived the Court’s Masterpiece Cakeshop decision unscathed, but we’re likely to see a day when businesses and individuals are punished by the state for abiding by their moral and religious convictions. When that happens, lawsuits may be less effective than simply refusing to comply, accepting the punishment, and allowing the world to see just how coercive “liberalism” can be.
