On Monday, the U.S. Supreme Court handed down its decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a landmark case dealing with the question of whether a Christian baker could refuse to bake a cake to celebrate a same-sex wedding. While the court ruled in favor of baker Jack Phillips, it did not explicitly address a fundamental issue in the case: whether opting out of providing expressive goods for a same-sex wedding constitutes unlawful discrimination or an exercise of free speech.
Jeremy Tedesco, senior counsel at Alliance Defending Freedom (ADF), told PJ Media that the case was a “great victory” for Jack Phillips, but acknowledged that “the court was very careful to essentially reserve similar cases for another day.”
“Our cases are about creative and artistic expression and about whether government can control what artists can create,” Tedesco explained. He argued that bakers like Jack Phillips — along with florists like Baronnelle Stutzman and others — can refuse to serve same-sex weddings because baking cakes, arranging flowers, and taking pictures to celebrate these events constitute an endorsement of same-sex marriage. While same-sex couples have the right to marry, Americans also have the right to disagree with same-sex marriage and to refuse to associate with such events.
“I think Justice Kennedy and people on the opposition are worried about things that are not going to happen, like a mechanic refusing to serve a gay or lesbian,” Tedesco argued. He claimed that such fears have no connection to the issues at stake in these cases, and that the free speech questions in Masterpiece Cakeshop should follow historic precedent.
“You don’t lose your First Amendment free speech rights just because you’re paid to speak,” the ADF lawyer said.
Some activists have compared Christians opting out of serving same-sex weddings to the segregation tactics of refusing to serve black people familiar from the struggles for civil rights. Tedesco also attacked this comparison.
“The Civil Rights-era decisions focused on discrimination on the color of your skin. Jack serves every single person who comes into his shop, he just can’t create cakes that express all messages for all events,” Tedesco said. “For Jack, it’s all about the what, it has nothing to do with who’s requesting. That is not what was happening in the Jim Crow South.”
Even so, Justice Anthony Kennedy, who wrote the majority opinion in Masterpiece Cakeshop, did not take a stand on the issue of whether or not private small business owners can opt out of providing expressive products or services designed for a same-sex wedding.
Instead, Kennedy ruled that the Colorado Civil Rights Commission did not give Phillips a fair hearing. Not only did the commission use a double standard in addressing other cases, but members of that commission denigrated Phillips’ faith, going so far as to compare it to religious defenses for slavery and the Holocaust.
“The record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phillips’ religious beliefs,” Kennedy wrote. In demonstrating an anti-religious bias, the commissioners violated Phillips’ First Amendment rights to free exercise of religion.
Phillips argued that the First Amendment’s free speech and religious liberty clauses justified his refusal to bake a same-sex wedding cake for two homosexual men — Charlie Craig and Greg Mullins. Phillips offered to sell them any other type of cake for any other purpose, but refused to sell a cake designed to celebrate a same-sex wedding.
Phillips has an exhaustive process for wedding cakes: he sits down and meets with an engaged couple before crafting the cake, so he can put their personality into the design. He often presents the cake at the wedding. Therefore, his artistry in baking and presenting a wedding cake arguably constitutes an expressive act — an endorsement of the wedding — protected by the First Amendment.
When Craig’s mother called, Phillips also refused to sell a same-sex wedding cake to her, signaling that he would not sell such a cake to anyone, regardless of their sexual orientation.
The Colorado Civil Rights Commission ruled that Phillips had discriminated against Craig and Mullins on the basis of their sexual orientation. Even so, the same commission defended three bakers’ rights to refuse William Jack’s request to bake cakes with a Bible quote and a message against same-sex marriage. This enabled Kennedy to point out that the commission had used a double-standard — allowing bakers free speech to refuse to bake Mr. Jack’s cakes but not allowing Phillips to opt out of baking a same-sex wedding cake.
Kennedy clearly punted the major issue to a later time. “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market,” the justice wrote.
He laid out the thorny issue well. “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,” he wrote, noting that this means “the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights.”
However, “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression,” Kennedy added. “Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
Justice Ruth Bader Ginsburg’s dissent illustrated why many liberals disagree with the idea that Phillips had the free speech right to refuse to bake the cake. Ginsburg argued that Mr. Jack’s requested cakes were different in kind from the cake Craig and Mullins requested from Phillips.
“Craig and Mullins simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips would have sold,” Ginsburg wrote. “When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding — not a cake celebrating heterosexual weddings or same-sex weddings — and that is the service Craig and Mullins were denied.”
This claim is exactly the point at issue, however. Justice Clarence Thomas powerfully responded to this argument in his own opinion.
“To some, all wedding cakes may appear indistinguishable. But to Mr. Phillips that is not the case — his faith teaches him otherwise. And his religious beliefs are entitled to no less respectful treatment than the bakers’ secular beliefs in Mr. Jack’s case,” Thomas wrote.
Thomas cited the Supreme Court case Thomas v. Review Board (1980), in which a Jehovah’s Witness steel worker named Thomas (no relation to the Supreme Court justice) gladly made steel plates but refused to work on a fabrication line producing tank turrets.
“Of course, the line Mr. Thomas drew wasn’t the same many others of the same faith would draw. Even so, the Court didn’t try to suggest that making steel is just making steel,” the Supreme Court justice wrote. “Instead, it recognized that Mr. Thomas alone was entitled to define the nature of his religious commitments—and that those commitments, as defined by the faithful adherent, not a bureaucrat or judge, are entitled to protection under the First Amendment.”
“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,” Thomas powerfully wrote.
Thomas attacked the Colorado Civil Rights Commission for applying a sliding scale as to what constitutes protected speech.
“At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins,” Thomas wrote. “We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right.”
The commission declared that Mr. Jack’s requested cakes constituted speech, but the wedding cake Phillips refused to bake was just a “wedding cake.” “Only by adjusting the dials just right—fine-tuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views—can you engineer the Commission’s outcome,” Thomas argued.
Similarly, Justice Neil Gorsuch argued that if the bakers could refuse to make Jack’s anti-same-sex marriage cakes, Phillips must have the free speech to refuse to bake a same-sex wedding cake.
“The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orien- tation). But in both cases the bakers refused service intending only to honor a personal conviction,” Gorsuch wrote.
“To be sure, the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic,” he added. “We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else).”
“In the end, the Commission’s decisions simply reduce to this: it presumed that Mr. Phillips harbored an intent to discriminate against a protected class in light of the foreseeable effects of his conduct, but it declined to presume the same intent in Mr. Jack’s case even though the effects of the bakers’ conduct were just as foreseeable,” Gorsuch wrote.
In other words, even though both cases involved bakers refusing to bake cakes expressing a message, the commission assumed that Phillips was merely using his beliefs as an excuse to discriminate against homosexual couples, while refusing to extend that same mistrust to bakers who in effect discriminated against a Christian.
Anti-religious bias was indeed the key issue in Phillips’ case, and it is likely the same issue behind the insistence that refusing to serve a same-sex wedding is in all cases an act of unlawful discrimination. Tim Gill, a major LGBT donor and activist, argued that his movement must prosecute people like Phillips in order to “punish the wicked.”
Tellingly, Ginsburg not only explicitly denied Phillips’ right to free speech on this issue, but argued that the negative statements of the commissioners did not suggest any animus in the case. Justice Sonya Sotomayor agreed with her in not only denying Phillips’ free speech, but in asserting that Phillips faced no unjust anti-religious bias.
The anti-religious bias on this particular issue seems to run so deep that liberal members of the Supreme Court are blinded to clear anti-religious animus, even when justice is served.