Supreme Court Sides With Anti-Gay Baker. It’s Not a Loss for LGBT Equality.
A Christian baker can refuse service to a same-sex couple for now, but only because the state called his beliefs ‘offensive.’ Even liberal justices agreed.
Everyone is going to say the Supreme Court’s ruling in Masterpiece Cakeshop is a win for the Christian baker who refused to bake a cake for a same-sex couple. They’re wrong. This case was forfeited by the Colorado Civil Rights Commission.
In the Court’s 7-2 opinion, written by Justice Anthony Kennedy, the Court decided the case on narrow, and unusual, grounds: that the commission was actively hostile to the religious beliefs of the baker, Jack Phillips. As a result, the Court’s opinion didn’t reach the deeper issues underneath, and we know no more about them than we did before the case came down.
That’s why the vote was 7-2: because, in the end, this was an easy case. The issues underneath are hard: they are about the conflict between the First Amendment and rights to be free from discrimination. Is a cake “speech?” Did Phillips refuse to bake a generic cake for gay people, or did he refuse to bake a special gay-wedding cake? When does a sincere religious belief justify discrimination, and when doesn’t it?
The answer is, we still don’t know.
What we do know is that the Colorado commission royally messed up, calling Phillips’ beliefs “irrational” and “offensive.” Agree or disagree with that characterization, passing such judgment is not the government’s business. That’s how Justices Kagan and Gorsuch were able to agree on the outcome of this case. The First Amendment requires government officials to be neutral toward religion, and the Colorado civil rights commission was not.
“The Civil Rights Commission’s treatment of [Phillips’] case,” Justice Kennedy wrote, “has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”
It didn’t help that the commission also failed to explain why Phillips was being treated differently from a baker who refused to bake a cake with an anti-gay message. Justice Kagan, in her concurring opinion, actually set forth how the commission could have distinguished the cases: Phillips refused to serve gay people, whereas the other baker refused to bake that cake for anyone. But the commission didn’t do that. It just said that the anti-gay cake was offensive and the gay-wedding cake wasn’t.
Even the Court’s opinion hinted at this point: “While the issues here are difficult to resolve, it must be concluded that the State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed.” In other words, this would have been a hard case had the commission done its job right. But it didn’t, and so this became an easy one.
If the Colorado commission was the big loser in Masterpiece Cakeshop, in a way the big winner is Justice Kennedy.
Over the past several months, commentators like me have wondered how Kennedy could (sorry about this) “have his cake and eat it too” in this case. On the one hand, Kennedy is the author of every major LGBT opinion in recent Supreme Court history, and he has never ruled against LGBT people. On the other hand, Kennedy is a vaunted free-speech libertarian, and it was hard to see how he, as the likely swing vote, could ever compel a baker to write words on a cake that he didn’t want to write.
Well, he found a way.
Gay Americans just received another helping of powerful, even moving, judicial rhetoric. “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” Justice Kennedy wrote. “For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights.”
And yet, on the other hand, “The official expressions of hostility to religion in some of the commissioners’ comments… were inconsistent with what the Free Exercise Clause requires.”
With Justice Kennedy occupying the center, that left four other opinions to argue the case we all expected. Justice Kagan (joined by Justice Breyer) wrote separately to emphasize that had the case been properly presented, Phillips would have lost. Justice Gorsuch (joined by Justice Alito) wrote to say that Phillips probably would have won. Justice Thomas (joined by Justice Gorsuch) wrote to say Phillips would also have won on free speech grounds.
And Justice Ginsberg (joined by Justice Sotomayor) dissented, arguing that the hostile comments were only by certain members of the civil rights commission, that Phillips’s refusal to sell a cake to a gay couple is what is more important, and that it cannot be allowed to stand.
If you tally up those concurring and dissenting opinions, you’ve got three for the baker and four against, leaving only Chief Justice Roberts and Justice Kennedy unaccounted for. Which is what most commentators knew going in: that this was going to come down to the two of them.
So, where do we go from here?
On a rhetorical level, the Christian Right is going to cheer this as a huge victory for religious freedom. Already, they have filed numerous follow-up cases, hoping to extend Masterpiece Cakeshop to florists, photographers, for-profit wedding halls, even lawyers and doctors. Just because of how it was decided, the case is a win for the right in its ongoing “culture war.” And Jack Phillips can refuse to sell cakes to same-sex couples.
On an actual legal level, though, this case says almost nothing. Because of the commission’s open hostility to Phillips’s religious beliefs, we don’t know what would happen in a more neutral case. As we’ve just seen, the current vote on that question is 4 to 3, with the two swing votes abstaining.
Indeed, even Phillips himself could well be re-sanctioned by the Colorado civil rights commission, using the rationale that Justice Kagan has helpfully laid out in her opinion. There is nothing in the Court’s judgment prohibiting the commission from doing so, although they may find it more politic to let it go.
Essentially, all this case says is “when enforcing civil rights laws, the government must be neutral toward religious claims.” And we knew that already. This case says nothing.