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Might Religious Liberty Actually Win This Round?

Justice Anthony Kennedy ponders the buttercream frosting (Rob Crandall/Shutterstock)

Well, Think Progress thinks things went regressively at the Supreme Court today, in oral arguments in the Masterpiece Cakeshop case. Excerpt:

Things quickly turned south, however, not long after Colorado Solicitor General Frederick Yarger stepped up to the podium to defend Colorado’s anti-discrimination law. Up until this point, everyone in the courtroom treated the case as a free speech case. Waggoner and Francisco’s arguments rested largely on claims that Phillips was being forced to express a view that he does not hold. The question of whether Phillips’ right to practice his faith was somehow implicated largely went unmentioned.

But this question sure mattered to Kennedy. Pointing to a state commissioner who claimed that the idea that religion could be wielded to justify discrimination is “despicable,” Kennedy all but demanded that Yarger disavow that statement. This one commissioner’s statement, Kennedy suggested, displayed such hostility to religion that it could justify invalidating the entire ruling against Mr. Phillips.

Chief Justice Roberts and Neil Gorsuch, who occupies the seat that Senate Republicans held open for a year until Donald Trump could fill it, quickly piled on. Gorsuch, for his part, claimed that a second commissioner showed improper bias when they said that a person with religious beliefs that conflict with a civil rights laws may have to compromise those beliefs.

And then things got even worse for Colorado and for supporters of anti-discrimination laws. “Tolerance is essential in a free society,” Kennedy lectured Yarger. The state, Kennedy continued, has not been particularly tolerant towards Mr. Phillips. “There are other shops,” Kennedy concluded, suggesting that same-sex couples should be forced to go door to door to other bakeries until they find one willing to serve them.

Well, gosh. If Think Progress, home of Zack Ford, the world’s screamingest meemie,  is upset, something good must have happened at the Court today.

Here, from the Supreme Court’s website, is a PDF file of the transcript of this morning’s oral arguments. I encourage you to read it, for a couple of reasons. First, to get a sense for the challenge facing the Justices here; it is not an easy case when you get down to the nitty-gritty. Second, to get a sense of how anxiety-producing it must be to argue in front of the Supreme Court.

You know my own bias in this case, but it does seem to me that the conservatives had the better day (but that is by no means open-and-shut). Look at this excerpt of an exchange between Justice Anthony Kennedy and the lawyer for the State of Colorado, which attempted to punish the cakeshop owner:

JUSTICE KENNEDY: Suppose we thought that in significant part at least one member of the Commission based the commissioner’s decision on — on — on the grounds that — of hostility to religion. Can — can your -­ could your judgment then stand?

MR. YARGER: Your Honor, I don’t think that one statement by the commissioner,  assuming it reveals bias -­

JUSTICE KENNEDY: Well, suppose we -­ suppose we thought there was a significant aspect of hostility to a religion in this case. Could your judgment stand?

MR. YARGER: Your Honor, if — if there was evidence that the entire proceeding was begun because of a — an intent to single out religious people, absolutely, that would be a problem.


JUSTICE KENNEDY: Well, but this whole concept of identity is a slightly — suppose he says: Look, I have nothing against — against gay people. He says but I just don’t think they should have a marriage because that’s contrary to my beliefs. It’s not-

MR. COLE: Yeah.

JUSTICE KENNEDY: It’s not their identity; it’s what they’re doing.

MR. COLE: Yeah.

JUSTICE KENNEDY: I think it’s — your identity thing is just too facile.

He also said later:

JUSTICE KENNEDY: Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.

Not sure where that has anything to do with the law, but it does indicate where Kennedy’s sentiments lie.

David Brooks had a good column this morning lamenting that this was even a court case. Excerpt:

If you want to know why we have such a polarized, angry and bitter society, one reason is we take every disagreement that could be addressed in conversation and community and we turn it into a lawsuit. We take every morally supple situation and we hand it over to the legal priesthood, which by necessity is a system of technocratic rationalism, strained slippery-slope analogies and implied coercion.

Legal conflict is a clumsy tool to manage the holy messiness of actual pluralistic community. The legal system does not deal well with local and practical knowledge, the wisdom to know when a rule should be applied and when it should be bent. It does not do well with humility, tolerance and patience — virtues that are hard to put into a rule and can be achieved only in a specific situation. It inevitably generates angry reactions and populist uprisings.

Readers of this column know that I fervently support gay marriage, but I don’t think bakers like Jack Phillips are best brought along by the iron fist of the state. I don’t think the fabric of this country will be repaired through the angry confrontation of lawyers. In this specific situation, the complex art of neighborliness is our best way forward.

He’s right about that, but I don’t see how we turn back now. A Christian reader who works in the science-and-tech field e-mailed today to tell me about the atmosphere where he works. He asked me not to publish any of his e-mail, for fear of it being traced back to him. He talked about how anxious he is to hide that fact that he dissents from the dominant ideology. After the James Damore firing from Google, he believes that if he wants a career in his field, he cannot afford to be identified in any way with sentiments that could be construed as “anti-LGBT,” and censors himself in public all the time.

He said he is tired of people talking about the Benedict Option on the question of whether or not it is too retreatist. The reader explained that Christians like him in the tech world are staring down the barrel of serious, real-world consequences from institutional authorities eager to weaponize cultural difference to suppress what they consider to be intolerable evil. This is not theoretical. It’s really happening, and will continue to happen.

Remember a decade or so ago, when people raised these issues, and were met with the rejoinder, “I don’t see what my gay neighbors’ marriage has to do with me”? Today at the US Supreme Court, advocates for a small-town cakeshop owner had to defend not their client’s unwillingness to sell his wares to a gays — he’s perfectly willing to do that — but their client’s unwillingness to bake a wedding cake for them. Extremism in the hounding of religious conservative “bigots” is no vice for the left.

I hope that the Supreme Court rules in favor of the cakeshop owner, of course, but if it does, don’t for a minute think that this fight is over, or that your job and livelihood will be safe if you are known to dissent.

UPDATE: Don’t miss this comment from a lawyer reader:

I don’t know if people read the same oral arguments transcript. How do you get the idea that Kennedy is going to vote with Masterpiece Cake Shop?

His reference to the possibility of bias on the part of one commissioner was meant as an “out” – to avoid deciding the case on the merits. It’s funny to see the Left erupting in worry and the Right with hope. Both sides are wrong. To begin with, remember that no one on the court, whether liberal or conservative, entertained the idea of a religious freedom exemption. That itself is worth pointing out. There is only one vote on the current Supreme Court for suspending generally applicable anti-discrimination laws for religious reasons, which is the only reason why this became a First Amendment argument. But this approach also inherently limits the scope of any “win” because most products and services that are being sold to gay couples for gay weddings (catered food, venues, dresses, suits) won’t be expressive enough under any standard to be counted as speech for the purposes of public accommodations. The worst case scenario for LGBT folks is actually pretty tame.

But there is actually no way Masterpiece Cake Shop will prevail, and the oral arguments show this if you read the questions closely.

For Masterpiece to prevail, the justices will have to find a principled way to limit this case to wedding cakes or a very small segment of wedding service providers. And if the justices really wanted to rule for the baker, then why did none of them, apart from Gorsuch, seem interested in exploring a specific standard for how to do this? Recall that in the gerrymandering case, Kennedy was all about specific standard-setting questions. Here, none of the conservative justices, save Gorsuch, was interested in exploring the specifics of what constituted compelled speech. Gorsuch seemed annoyed, in fact, that none of his colleagues was pursuing precisely the line of enquiry that would ground an opinion in favor of Masterpiece. He was not aided by Waggoner, who could not provide a principled way of what counted as coerced speech. She went so far as to suggest that chefs cooking a gay anniversary dinner would not be protected, but bakers baking a gay wedding cake ought to be. When Alito tried to be helpful by suggesting architectural art would also be covered, she swatted away the suggestion and said it wouldn’t because architecture was functional and not expressive! What?! Any guesses how many votes there are on the Supreme Court for protecting bakers but not chefs?

Second, if you look beyond the comments about the specific commissioner, all the substantive legal questions were thrown at the Christian baker. When it came to Masterpiece, Kennedy wanted to know how the line would be drawn, if siding with the Christian baker would send a signal of encouragement for a broader denial of services to gay couples. The justices were asking: even if we are sympathetic with your coerced speech arguments, how do we find for you without also finding for the baker who has black friends but doesn’t want to bake a cake for an interracial couple? No such line is possible.

Finally, and I don’t think people get this enough. All justices are human and mindful of how their biographies will be written when they are at that age. The Supreme Court justice who authored Lawrence, Windsor, Obergefell isn’t going to end his career by voting for Masterpiece.

Finally, remember that Kennedy concurred in Christian Legal Society v. Martinez, which presented an even greater affront to Christian objections to homosexuality than this baker case. (Schools aren’t even public accommodations.)

about the author

Rod Dreher is a senior editor at The American Conservative. He has written and edited for the New York Post, The Dallas Morning News, National Review, the South Florida Sun-Sentinel, the Washington Times, and the Baton Rouge Advocate. Rod’s commentary has been published in The Wall Street Journal, Commentary, the Weekly Standard, Beliefnet, and Real Simple, among other publications, and he has appeared on NPR, ABC News, CNN, Fox News, MSNBC, and the BBC. He lives in Baton Rouge, Louisiana, with his wife Julie and their three children. He has also written four books, The Little Way of Ruthie Leming, Crunchy Cons, How Dante Can Save Your Life, and The Benedict Option.

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