AP Photo/David Zalubowski
The press is reporting that the Christian baker who refused to bake a cake for a same-sex wedding has won his case in the Supreme Court. That is technically accurate but deeply misleading. He did get the decision against him reversed, but the next time he turns away a same-sex couple (as he has said he will do), he will lose his case. The Court's opinion provides no tangible help for the baker or other religious objectors to antidiscrimination laws, though it offers them some important moral encouragement.
The facts of Masterpiece Cakeshop v. Colorado Civil Rights Commission are simple. Charlie Craig and David Mullins visited the Masterpiece bakery and looked through a photo album of custom-designed cakes. When the owner, Jack Phillips, greeted them, they told him (according to his own testimony) that they “wanted a wedding cake for ‘our wedding.’” Phillips told them that he did not create wedding cakes for same-sex weddings. They left immediately without discussing any details of their proposed wedding cake. Craig and Mullins then filed a civil rights complaint against Phillips for violating Colorado’s antidiscrimination statute. Phillips claimed, unsuccessfully, that he was protected by freedom of speech and freedom of religion. The Supreme Court agreed to hear his appeal.
As the case developed, however, it became clear that, while the justices were sympathetic to Phillips, there was no coherent First Amendment theory by which he could win. They saw the problem in the oral argument. It wasn’t just that the arguments were unsuccessful. It was that they were so silly that they raised questions about the Court’s wisdom in agreeing to hear the case in the first place. How could it extricate itself without embarrassment?
The Court seized on one detail in the record (as, after the oral argument, I thought it might). One of the members of the Colorado Civil Rights Commission had declared: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history ... to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Justice Anthony Kennedy’s opinion for the Court observed that this disparaged Phillips’s 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 language, which neither the other commissioners, the later court rulings, nor the state’s brief disavowed, “cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’s case.”
As the temperature rises on the gay rights/discrimination issue, one sees a lot of this kind of rhetoric on the left. It is unfair and contributes to the nasty political polarization that gave us the presidency of Donald Trump. Kennedy was right to denounce it. State officials have no business deciding which religious beliefs are despicable or hypocritical.
The victory for conservatives here was modest, but it was a victory to which they were entitled.
The commission ordered Phillips to “cease and desist from discriminating against ... same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples.” No money damages were awarded. The order was vacated, but in fact he is still subject to it, because there's no reason to think that he would prevail on a do-over. That's why it's a mistake to say that he won.
Under Colorado law, this is an easy case. The antidiscrimination statute requires him to sell same-sex couples the exact same goods that he's willing to sell to heterosexual couples. Kennedy reaffirmed the longstanding rule that “[religious and philosophical] 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.” He cited the 1968 Piggy Park case, in which the owner of a barbecue restaurant unsuccessfully asserted that his religious objections entitled him to discriminate against black customers.
Three justices tried to nudge the decision toward a substantive victory for the baker, claiming that there was a product that Phillips would not sell to anyone: a “cake celebrating same-sex marriage” (Justice Neil Gorsuch), “custom wedding cakes that express approval of same-sex marriage” (Justice Clarence Thomas; Samuel Alito joined both concurrences). This trick won’t work. There are no such cakes. What Phillips refused to sell, Justice Elena Kagan responded, “was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings.” Kagan is right. In Piggy Park, the Court would not have accepted a claim that the owner would refuse without discrimination to sell “racially integrated dining,” or “food that expresses approval of integration.”
Phillips's claim should earn some sympathy. There are other bakers, and if you're gay you don't want Phillips to have anything to do with your wedding anyway. It ought to be possible for the contending sides of the gay rights/religious liberty controversy to reach some kind of deal. This kind of bargain is, however, beyond the institutional capacity of courts. They can't learn through negotiation what each side's most urgent interests are, and they can't draw the kind of arbitrary lines that negotiations often produce. But before we can start talking with one another, we need to stop demonizing each other. The Court's modest opinion is valuable to the extent that it reminds us to do that.
