The facts seemed, almost certainly, like religious discrimination against gay people. The basics of the story went like this: Dave Mullins, Charlie Craig, and Craig’s mother Debbie Munn visited Colorado’s Masterpiece Cakeshop in 2012 to buy a wedding cake. Before they could even begin talking about design, it became clear that Mullins and Craig were the ones getting married, and at that point, bakery owner Jack Phillips refused to do business with them, citing his evangelical Christian beliefs.
In short, even if they wanted to buy the same cake he sells to straight people, Phillips refused to let them do it because they were gay. While the Religious Right has argued Phillips would have been endorsing gay marriage by making them a cake, or using his creative skills in support of a gay wedding against his will, neither was the case because they never even got to that stage of the process.
Colorado law prohibited discrimination on the basis of sexual orientation, a lower court ruled in favor of the gay couple, an appeals court did the same, but the Supreme Court wasn’t leaning in the same direction. Speculation was that Justice Anthony Kennedy, often a swing judge on social issues, thought Colorado went too far in inhibiting religious freedom through its laws and this was going to be a 5-4 vote in Phillips’ favor.
The bad news is that the numbers were even worse. Today’s decision was a 7-2 ruling in favor of Phillips. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.
The good news is that the ruling is so narrow, the victory means… not all that much. It’s symbolically awful, but the ripple effect is minimal. The ruling applies to this case and no others, meaning tonight’s victory party for evangelical Christians and other anti-gay bigots will be short-lived.
It’s like winning a special election in October of an election year. Go ahead and enjoy yourself, but the bigger contest is still looming.
The decision itself doesn’t even make much sense. On what grounds did Justice Kennedy, who wrote the opinion, decide that Colorado screwed up by punishing Phillips? He claimed that the Colorado Civil Rights Commission “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection,” thus biasing their decision against Phillips.
Specifically, he cited this statement made by a commissioner:
“I would also like to reiterate what we said in the hearing or the last meeting. 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.”
That commissioner was absolutely right. Religious has been used to justify bigotry and discrimination throughout history — and what makes it especially pernicious is that religion is thought to be a tool for moral behavior. To use something theoretically uplifting in order to hurt other people? You’re damn right that’s despicable.
By the way, you know what’s missing from that quotation? The last line uttered by the commissioner who said it: “That’s just my personal point of view.”
Kennedy didn’t seem to care for that last line, nor did he care that the statement was utterly reasonable:
… The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation.
… the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.
None of that makes any sense. It’s like Kennedy was grasping for anything he could find to show the commissioners went too far, and he settled on a comment one of them made, suggesting religion shouldn’t be a Get Out of Jail Free card for discrimination.
Justice Ginsburg, in her dissent, wasn’t having any of it:
Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decision-making, of which the Commission was but one.
But still, Kennedy’s opinion was merely that Colorado’s commission went too far. He didn’t say religion could be justification for discrimination.
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.
It wasn’t a good decision. But it could’ve been so much worse. That’s the angle a lot of church/state separation groups are taking today.
Here’s the ACLU, which defended the same-sex couple:
… The court did not accept arguments that would have turned back the clock on equality by making our basic civil rights protections unenforceable, but reversed this case based on concerns specific to the facts here…
“The court reversed the Masterpiece Cakeshop decision based on concerns unique to the case but reaffirmed its longstanding rule that states can prevent the harms of discrimination in the marketplace, including against LGBT people,” said Louise Melling, deputy legal director of the ACLU.
The Freedom From Religion Foundation said the Supreme Court “missed an opportunity” to strengthen the Constitution while noting that the side of tolerance and decency dodged a bullet.
This decision is based on the Free Exercise of religion argument and, had it been decided as the Religious Right argued, it would have thrown open the doors for all kinds of discrimination, especially racial discrimination and discrimination against religious minorities and nonbelievers. During oral argument, it was clear that none of the justices or the bakery’s attorneys could draw a legal line that would allow discrimination against LGBTQ customers but not black, Asian, Jewish or atheist customers.
“Before the opinion came down, we were deeply concerned that the Court might use this case to sacrifice minorities on the altar of the Christian god,” says FFRF Co-President Dan Barker, “but that’s not what the court did. Now our only concern is that some might try to misinterpret the court’s ruling to justify future discrimination.”
Though the decision will be promoted by the Religious Right as a sweeping victory, the court did not give them what they wanted; it did not redefine religious liberty as an unqualified license to discriminate or give the bakery the green light to discriminate in the future. The opinion can even be read as punting on the most important issue. Essentially, Kennedy tortured the facts enough to say that the bakery didn’t get a fair hearing and was subject to hostility from the commission.
American Atheists said the narrow decision made future cases like this even more confusing:
“We condemn this abdication of the Court’s responsibility to protect the right of all Americans to be free from invidious discrimination,” said Alison Gill, legal and policy director for American Atheists. “By ruling so narrowly and refusing to decide this case on the clear merits and strength of the Civil Rights Commission’s argument, the Court has sown confusion in the law and damaged the ability of individuals to protect their rights.”
“It’s disappointing that the Supreme Court took a perfectly reasonable statement about religion being used as an excuse to harm others and used it as an excuse to ignore the core questions raised by this case,” added Gill. “At the end of the day, however, non-discrimination laws are still enforceable, despite the efforts of religious extremists in this case.”
Americans United for Separation of Church and State was disappointed in the ruling, but we’re talking a few tears, not a deluge. They even used the phrase “good news” in their press release:
“While today’s decision isn’t what we had hoped for, the good news is that it’s very limited in its scope,” said Rachel Laser, president and CEO of Americans United. “It does not change the long-standing rule that businesses open to the public must be open to all.
“As we have long said, religious freedom should act as a shield to protect religious exercise, not as a sword to harm and discriminate against others,” Laser continued. “The court itself recognized today that disputes such as this one must be resolved ‘without subjecting [LGBTQ] persons to indignities when they seek goods and services in an open market.’”
I would add one more opinion to the pile. When it comes down to it, the Christians who are celebrating this ruling are really celebrating their ability to treat others as second-class citizens on the sole basis of their sexual orientation. In a parallel universe, using the same arguments, they could’ve done the same thing to an interracial couple.
Today’s decision may not mean much in the legal sense, but it solidifies the notion that to be an evangelical Christian today means treating other people like garbage and getting away with it.
Evangelicals ought to see this as a Pyrrhic victory. Sure, they won the battle, but this is only going to further damage their reputation in the long term.
You want proof of that? Look at what Justice Not Merrick Garland wrote in his concurrence. He cited the case of William Jack, who asked three bakers to make cakes with anti-gay messages on them. The bakers said no, and the Colorado commission said they had the right to do so. Isn’t that hypocrisy? Gorsuch wanted to know.
Justice Elena Kagan, despite concurring with the overall ruling, ripped that notion to shreds:
Jack requested them to make a cake (one denigrating gay people and same-sex marriage) that they would not have made for any customer. In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else — just as CADA requires. By contrast, the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple. In refusing that request, Phillips contravened CADA’s demand that customers receive “the full and equal enjoyment” of public accommodations irrespective of their sexual orientation.
When Christians like Neil Gorsuch have to rely on dubious comparisons to make their irrational arguments for faith-based discrimination, it’s not a good look for the history books. And it’s not good PR for a religion that’s already shedding adherents left and right.
While today’s decision was disappointing, take heart that, as far as victories go, it was about as limited as it could’ve been. This case will not become precedent for future acts of religious bigotry, but it will live on for those of us who routinely argue that Christian beliefs shouldn’t be used as a moral compass for anyone.
(Image via Shutterstock)