A Recipe for Trouble

Mo

Today, the Supreme Court issued its highly anticipated ruling in Masterpiece Cakeshop, the case in which a Colorado baker, Jack Phillips, refused to create a cake for a gay couple’s wedding. The Court held, 7-2, that the Colorado Civil Rights Commission violated Phillips’ First Amendment right to free exercise of religion. Notwithstanding the wailing on the left side of the aisle that this ruling opens the door for all manner of discrimination against sexual orientation, it’s quite narrow in scope and is likely to, in effect, give them exactly what they want: forced speech and forced violation of belief.

Phillips is a devout Christian who owns a bakery. He honestly believes that “God’s intention for marriage from the beginning of history is that it is and should be the union of one man and one woman.”  In 2012, a gay couple asked Phillips to create a cake for their wedding and Phillips refused, explaining that he does not make cakes for same-sex weddings. The couple filed a complaint with the Colorado Civil Rights Division under the Colorado Anti-Discrimination Act, which prohibits discrimination on the basis of sexual orientation, among other things, in places of public accommodation. The Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission, which ultimately confirmed an administrative law judge’s determination that Phillips violated CADA. After the Colorado Court of Appeals affirmed and the Colorado Supreme Court declined review, Phillips filed a cert petition, claiming that the Commission violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment.

The Supreme Court concluded that the Commission did violate Phillips’ Free Exercise rights, but it did so based solely on how the Commission handled the case, not based on a broader ruling that a baker like Phillips has a right to refuse service that violates his beliefs. Specifically, the Court found that the Commission failed to apply CADA in a neutral and respectful manner, and provided good evidence of this failure. For example, one commissioner said:

​Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination.  And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

As Justice Kennedy, writing for the majority, argued:

To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.

The Court further described the Commission’s opposite handling of another series of cases, in which it concluded that bakers who refused to bake cakes that conveyed disapproval of same-sex marriage were acting lawfully. All of this, according to the majority, demonstrated that the Commission acted with hostility toward Phillips’ religious beliefs and therefore violated his Free Exercise rights.

What the Court did not do, however, was address the broader Free Speech and Free Exercise questions, such as whether a baker has First Amendment rights to refuse this service, period. In fact, the majority at least suggested he might not have that right:

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. … And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons.

By basing the decision exclusively on how the Commission specifically applied the law to Phillips, the Court sidestepped even a narrower, but very important, question of whether a baker has a right to control his artistic expression (through cake baking) under the First Amendment (as Justices Gorsuch and Thomas addressed in concurrence).

The Reagan Battalion asked a good question on Twitter:​

Is the Supreme Court not doing a disservice to the country by not ruling on the crux of the matter, but rather finding an ‘easy way out’ avoiding giving an opinion on what this case was really about?

— The Reagan Battalion (@ReaganBattalion) June 4, 2018

​The answer is “yes.” There is no question that the Supreme Court has a long-standing, and usually good, practice of avoiding answering broader questions when there is a narrower ground to make the decision, as there was here. The problem with this narrower ground, though, is it provides virtually no guidance to the citizen that matters here: the baker, the guy making the decision of whether to bake the cake. You can see the dilemma in Kennedy’s hedging, which is, as usual, couched in language of feelings (“serious stigma”) rather than clear, understandable Constitutional principles.

Imagine you are a Christian baker, following this decision, and you’re faced with the decision of whether to create a cake for a gay wedding. Does this ruling give you any guidance as to what is allowed and what is not allowed? No, it doesn’t. The outcome depends entirely on how a state commission might handle your case in the event you say no, and on how a court might view that handling. While the state commission might have a clear idea of what to do from now on (e.g., not make discriminatory comments), the baker does not. Instead, the baker still faces the dilemma of deciding whether to violate his beliefs by creating the cake or to refuse and face potential ruin.  

In practice, this ruling is likely to have a chilling effect on what is, in my opinion, clearly a free speech problem, as well as a free exercise problem, effectively giving the Left what it’s complaining it has been denied. You may disagree with Phillips, as I do, but it is no small matter to force him and others like him to speak when he does not wish to do so, even if you object to his reasons or think he’s a terrible person for holding his beliefs.