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Religious Liberty Wins Small

SCOTUS votes 7-2 in favor of the Christian cake baker
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I’m stunned — and grateful. Religious liberty advocates are so used to losing in cases involving gay rights that we have learned not to expect victories. But the US Supreme Court gave us a win today, voting 7-2 to support the free speech rights of Masterpiece Cakeshop owner Jack Phillips. 

This ruling is supported not only by the Court’s four conservative justices, but also by libertarian swing vote Anthony Kennedy (who wrote the majority opinion), and by two Court liberals: Stephen Breyer and Elena Kagan. That’s a big deal … but not as big a deal as I would have liked. Let me explain.

In its brief ruling (PDF here), the Court found that the Colorado Civil Rights Commission showed an unconstitutional degree of hostility to Christian baker Jack Phillips, in ruling that he had violated the law in declining to bake a wedding cake for a same-sex couple. From the ruling:

The justices go on to cite cases in which the Commission upheld the free speech rights of other Colorado bakers who refused to create cakes with anti-gay marriage messages. The justices said, in effect, that the message sent by the Colorado commission was one of anti-religious bigotry. The heart of today’s ruling:

The inference here is thus that Phillips’ religious objection was not considered with the neutrality required by the Free Exercise Clause. The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. But the official expression s of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same.

Fantastic. But before we religious liberty advocates get too excited about it, let us ask: How would this ruling have gone if the Colorado commissioners had not been so blatantly bigoted in their comments about the Masterpiece case? In other words, what if they had cloaked their prejudice in politeness, in bland bureaucratese? Masking your bigotry in that way is not hard to do, you know.

NPR’s headline on its first report called this ruling “narrow” — something I took to be an expression of the broadcaster’s bias. How is a 7-2 ruling “narrow”? But I was wrong: it is a narrow ruling, in terms of its constitutional scope. The ruling leaves unaddressed all, or nearly all, of the basic constitutional questions having to do with the clash between gay rights and religious liberty. I suspect that’s how they got Kagan and Breyer on board, and probably Kennedy too: because the stakes were very small. 

The language of the ruling suggests that if the Colorado commission had given the appearance of fair dealing with the Christian baker, it could have ruled the same way and avoided today’s SCOTUS ruling. Or maybe not: the Court would have still had to deal with the question of why a Colorado cake baker can refuse to bake a cake with an anti gay marriage message, but not do what Jack Phillips did. If I’m reading this ruling correctly — and I invite critique — SCOTUS gave no direction for how that dilemma should be decided in the future. It only mandated that religious people should be given fair consideration, without indicating what kind of outcome would be fair.

What if a gay couple went to Masterpiece Cakeshop tomorrow and asked for a wedding cake, and Jack Phillips turned them down, and they go to the Colorado Civil Rights Commission to complain? Could the Commission deliver the same verdict against Masterpiece, but do so in apparently neutral language, and therefore be on the right side of today’s ruling?

If not, why not? What’s to stop gay activists, who have tied this small business owner up in court for five years, from doing it again to him — and this time, expecting the Colorado Civil Rights Commission to be more careful to conceal its hostility to him?

I don’t mean to be ungrateful for this ruling, which I did not expect. (“Take the win, Debbie Downer,” teased a friend.) I do, however, want to caution against reading too much into this. The Court punted more fundamental conflicts down the road. This means that for religious liberty advocates, the future composition of the Supreme Court is massively important. We knew that anyway, but the narrowness of this decision proves it.

I expect today’s decision to be met on the left with histrionic caterwauling about theocracy, bigotry, the usual. The campaign in popular culture to ramp up hatred of religious conservatives will intensify. I spoke last week to an academic who studies this kind of thing for a living. He said Christians who refuse to see how orthodox, traditional expressions of the faith are going to be increasingly vilified in American life are lying to themselves. Today’s ruling is a minor win for us at the Supreme Court, and for that let us be thankful. But let us also be sober and realistic about how in the court of public opinion, the ruling is going to be harsh.

That’s fine — but those conservative Christians who are still under the impression that winsomeness will win over their cultured despisers are about to learn a painful lesson.

By the way, do yourself a favor and watch this video of Jack Phillips, put together by his legal team, to get an idea of who he is and what he does. I imagine that he will now become even more of a figure of hatred on the left. That’s not who he is. Watch:

[youtube https://www.youtube.com/watch?v=hfshnP_yqsQ]

UPDATE: Reader Jones:

I think you’re understating the value of the message being sent here. The opinion only objects to open anti-religious bigotry — but that’s not a small thing. In fact open anti-religious bigotry is precisely the thing you profess to be most concerned about, and the direction our culture seems to be headed.

So it’s important to draw a line there. And the other thing is that this is 7-2. You’ve got Kennedy, Breyer, and Kagan. The inclusion of two highly respected liberals in the opinion sends an important message. There are very powerful and prominent liberals who have a problem with anti-religious bigotry. Other liberals will have to grapple with that message.

Also, there are certain, highly cynical, narrative about politics and jurisprudence that can’t survive this decision. If everything is reducible to narrow-minded left/right politics, then there’s no reason why this should not have been a 5-4 decision, one way or another. If Breyer and Kagan were just reflexive leftist hacks, then they surely could have cooked up some reason not to join the opinion. But that’s not what happened.

Reader JW:

This is a narrow decision. On my first reading, something else to point out is that the Court notes that the complaint originated against Philips before Windsor and Obergefell and therefore Phillips was in a different legal terrain than would be true today. There was no constitutional right to gay marriage in 2012. So again, a very narrow ruling that only absolves Phillips because his “crime” was committed before gay marriage had federal force. The fact that the Court could have everything in this case it needed to make clear a large scope for the free exercise clause and did not do so, but really only absolved Phillips on what are really a couple of technicalities is a huge red flag for religious liberty going forward.

UPDATE.2: What about this?


I would love for that to mean that SCOTUS believes what Jack Phillips did was, and is, protected expression. But I don’t see that in the ruling. SCOTUS only said that the Colorado Civil Rights Commission ought to have taken Phillips’s claims more seriously, and lower courts ought to have recognized their failure to do this as obviating their ruling.

UPDATE.3: It’s worth reading the other Court opinions too.  Justice Kagan, concurring with the majority, believes that the Colorado commission arrived at the correct decision on the Masterpiece case, but for the wrong reasons — reasons so corrupted by bias that the decision is, in her opinion, invalid.

Justice Gorsuch, in his concurrent opinion, writes of the Colorado Civil Rights Commission’s ruling:

That kind of judgmental dismissal of a sincerely held religious belief is, of course, antithetical to the First Amendment and cannot begin to satisfy strict scrutiny. The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.

Here’s an interesting observation by Gorsuch comparing the instances of Jack Phillips on the one hand, and the other bakers (the ones who refused to make anti-gay marriage cakes) on the other. In case you’ve forgotten, the CCRC ruled against Phillips, and for the other bakers:

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 orientation).

But in both cases the bakers refused service intending only to honor a personal conviction. 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. 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). So, for example, the bakers in the first case would have refused to sell a cake denigrating same-sex marriage to an atheist customer, just as the baker in the second case would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer. And the bakers in the first case were generally happy to sell to persons of faith, just as the baker in the second case was generally happy to sell to gay persons. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers.

More Gorsuch. This is magnificent (I’ve edited out legal citations to make for easier reading):

Many may agree with the Commission and consider Mr. Phillips’s religious beliefs irrational or offensive. Some may believe he misinterprets the teachings of his faith. And, to be sure, this Court has held same-sex marriage a matter of constitutional right and various States have enacted laws
that preclude discrimination on the basis of sexual orientation.

But it is also true that no bureaucratic judgment condemning a sincerely held religious belief as “irrational” or “offensive” will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise. Just as it is the “proudest boast of our free speech jurisprudence” that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive. Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.


Of course, under Smith a vendor cannot escape a public accommodations law just because his religion frowns on it. But for any law to comply with the First Amendment and Smith, it must be applied in a manner that treats religion with neutral respect. That means the government must
apply the same level of generality across cases—and that did not happen here.

Here are excerpts from Justice Thomas’s concurring opinion:

Consider what Phillips actually said to the individual respondents in this case. After sitting down with them for a consultation, Phillips told the couple, “‘I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.’” It is hard to see how this statement stigmatizes gays and lesbians more than blocking them from marching in a city parade, dismissing them from the Boy Scouts, or subjecting them to signs that say “God Hates Fags” — all of which this Court has deemed protected by the First Amendment.

More Thomas:

In Obergefell, I warned that the Court’s decision would “inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to participate in and endorse civil marriages between same-sex couples.” This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.” If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.

An optimistic take on this has been suggested in private e-mail among friends (some of whom will be writing publicly on the matter, so I won’t elaborate here) who suggest that today’s ruling is more substantive than people like me think. The ruling could be understood as saying that SOGI (Sexual Orientation and Gender Identity) laws that presume that contrary religious expression is motivated by nothing but irrational animus cannot stand. In other words, today’s ruling may well provide a strong legal basis for resisting and restraining the scope of SOGI laws.


If nothing else, today’s ruling shows religious believers why the Supreme Court matters. Justice Gorsuch would not be there if Donald Trump had not won. We would have had a 6-3 ruling in Masterpiece’s favor, which is good, but now we know that for many years, a justice with the sane and balanced views of Neil Gorsuch will sit in judgment of religious liberty cases. That is enormously encouraging.

UPDATE.4: David French of National Review is a lot more positive on the ruling than I am. Excerpt:

This is a severe blow to the state. It hoped for a ruling declaring that the cake wasn’t protected expression and a free-exercise analysis that simply ratified the public-accommodation law as a “neutral law of general applicability.” Such a ruling would have permitted the favoritism on display in this case. It would have granted state authorities broad discretion to elevate favored messages and suppress dissent, all while operating under the fiction that they weren’t suppressing protected expression or religious exercise.

Instead, civil-rights commissions now have to understand that restrictions on religious bakers will carry with them the same implied restrictions on secular bakers, and the protections given gay customers will extend on an equal basis to religious customers. In other words, the Court not only prohibited favoritism, it imposed a high cost on censorship.

No, the Court did not issue the sweeping free-speech ruling that many advocates hoped for and others feared. Instead it issued a ruling that reminded state authorities that people of faith have the exact same rights — and are entitled to the exact same treatment — as people of different faith or no faith at all. And it did so in an opinion that decisively rejected the exact talking points so favored by the anti-religious left.