The Supreme Court’s Half-Baked Cake
Kennedy saves a baker from anti-religious bias he said couldn’t happen.
Demonstrators protest during oral arguments in the Masterpiece Cakeshop vs. Colorado Civil Rights Commission case at the Supreme Court in Washington, December 5, 2017. REUTERS/Aaron P. Bernstein Photo: aaron p. bernstein/Reuters
By The Editorial Board
June 4, 2018 7:15 p.m. ET
The Supreme Court ruled 7-2 Monday for a baker who refused to custom-bake a cake for a same-sex wedding out of sincere religious belief. Hold the champagne—this apparent victory for religious freedom may be short-lived.
As Justice Anthony Kennedy wrote in legalizing same-sex marriage in Obergefell (2015), the “First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faith.” Therefore, he predicted, the decision would pose “no risk of harm to themselves or third parties.”
Masterpiece Cakeshop v. Colorado Civil Rights Commission has forced Justice Kennedy to eat those words. In 2012 a gay couple asked Colorado baker Jack Phillips to bake a cake for their marriage, which at the time wasn’t recognized under Colorado law. Mr. Phillips refused but offered to sell the couple any baked good or cake off the shelf. Creating a wedding cake for an event that “celebrates something that directly goes against the teachings of the Bible, would have been a personal endorsement and participation in the ceremony,” he said.
The Colorado Civil Rights Commission ruled that Mr. Phillips had violated the state public accommodation law, which prohibits discrimination on the basis of sexual orientation. A state appellate court agreed.
While seven Justices on the High Court held for Mr. Phillips, the majority decision could have gone the other way had some facts been different. Writing for the majority, Justice Kennedy notes that Mr. Phillips was “entitled to a neutral decision-maker.”
Yet several commissioners evinced overt hostility toward religion. One declared that “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” and “it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
As is his wont, Justice Kennedy strains to avoid a clear and decisive ruling. While “religious and philosophical objections [to same-sex marriage] are protected, it is a general rule that such objections” don’t allow the denial of services “under a neutral and generally applicable public accommodations law,” he writes.
Perhaps the best that can be said is that florists, make-up artists, photographers and other people of faith have lived to fight another day. A ruling against Mr. Phillips would have been catastrophic for religious liberty, but the majority’s muddle provides only gossamer protection.
The American Civil Liberties Union gloated that the Court ruled “based on concerns unique to the case but reaffirmed its longstanding rule that states can prevent the harms of discrimination in the marketplace.” The message is that governments can punish religious beliefs as long as they keep their animus toward religion in the closet.
Justices Neil Gorsuch (joined by Samuel Alito ) and Clarence Thomas tag-teamed with forceful concurrences that would have gone further to protect the free exercise of religion and speech. Justice Thomas explained that custom-baking a wedding cake would have made Mr. Phillips “an active participant in the wedding celebration.” Invoking Court precedents that tolerated white supremacist expression, he notes that “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.”
Justice Gorsuch took the commission to task for applying a different standard in a case involving a baker who had refused to bake wedding cakes that criticized same-sex marriage: Civil authorities may not “gerrymander their inquiries based on the parties they prefer.” Justices Elena Kagan and Stephen Breyer defended the commission’s disparate treatment in their concurrence. While they agreed with Justice Kennedy that the commission had evinced bias toward Mr. Phillips, they said the commission could have legally punished him if commissioners had shown no overt religious bias.
Though Justice Kennedy rescued Mr. Phillips from the prejudice that he said in Obergefell couldn’t happen, the writing may be on the wedding cake. Four liberal Justices aren’t content with the right to same-sex marriage; they want to coerce everyone else to celebrate it no matter their religious beliefs, and politicians will follow.
The fundamental constitutional issue may have to be settled by a post-Kennedy Court, while lower courts in the meantime will decide case by case whether governments can compel religious people to endorse conduct with which they disagree. Masterpiece Cakeshop won’t go down in history as a legal masterpiece.
Appeared in the June 5, 2018, print edition.