Masterpiece Cakeshop Was Just the Beginning
SCOTUS reversed Colorado’s persecution of Jack Phillips – the baker who was happy to serve gay people but would not make a cake for a same-sex wedding — by a 7-2 vote.
It did so only on the basis that the Colorado state commission charged with enforcing anti-discrimination law itself displayed anti-religious animus.
That’s an unusual circumstance that’s not necessarily in play in the other wedding-vendor cases that periodically arise.
Arlene’s Flowers v. Washington is currently pending before the Court. Because the narrow ruling in Masterpiece Cakeshop is case-specific rather than some clarifying First Amendment principle, SCOTUS can’t simply send Arlene’s Flowers back to the state supreme court for reevaluation.
By deciding the case on those grounds, Kennedy sidestepped the broader question that has dominated public discussion of the case all year: When does it violate the First Amendment to require business people to accept work they believe implicates them in expression contrary to their beliefs? Dodged today, that question will assuredly be back in future.
Kennedy specifically did not carve out any new exceptions from state LGBT anti-bias measures; he even took pains to praise that body of law. Instead, his message to Colorado was: Go back and run the process again without showing animus toward people’s religious beliefs.
The Colorado Civil Rights Commission has allowed black cake-makers to refuse to make cakes for the Aryan Nation and secular cake-makers to refuse to make cakes opposing same-sex marriage, but Phillips refusal apparently went too far.
Is there a difference between declining to serve a class of people versus a particular event? Does the level of customization of a product matter? Is artisanal baking even protected by the First Amendment? Shouldn’t all this boil down to the freedom of association — including the freedom not to associate?
In 2015, the Supreme Court extended constitutional protections to same-sex marriage and created one of those cultural moments that feels like part of a Hollywood production. People wept tears of joy on the steps of the Court.
Opposition to legal recognition of same-sex marriage is a minority view even among Republicans.
That said, folks with religious convictions don’t change their minds over a Supreme Court case, and they certainly don’t change their minds because the government forces them to serve same-sex weddings. In fact, they’re likely to retrench in their beliefs.
We live in a pluralistic society, and not everyone’s convictions fit together easily. Tolerance needs to be mutual, not one-sided.
SCOTUS’s ruling will not keep agencies like the Colorado Civil Rights Commission from waging culture war on minority religious beliefs. But it may induce them to sublimate how they talk and emote along the way, so as at least to simulate respect for all parties.
