Littwin: Supreme Court boldly decides the Masterpiece cake case by not really deciding at all

So this is how it ends for the Masterpiece Cakeshop case, in which a Lakewood baker refused to make a wedding cake for a same-sex couple. The Supreme Court decides in favor of the baker or, as USA Today describes him in a headline, “cake artist.”

Not, mind you, because the court decided the cake artist was right or that he was, in fact, an artist.

Not because his argument was necessarily constitutional. (The court decided not to deal with that at all. Not the First Amendment question. Not the public accommodation question. Not the civil rights question.)

Not because refusing to bake a wedding cake for a same-sex couple for religious reasons seems little different to me than refusing to bake a cake for religious reasons for a Christ-killer’s bar-mitzvah — if you think that’s ridiculous, it was only in 2011 that the pope felt the need to tell Catholics, again, that Jews didn’t kill Jesus — or refusing to bake a cake for religious reasons for a mixed-race marriage and we can go on and on.

The court chose not to address any of those points. The court chose instead to decide that the Colorado Civil Rights Commission was guilty of “impermissible hostility” in the face of the baker’s religious claims (which, for the sake of clarity, I prefer to call bigotry.)

The court ruled 7-2, meaning that two of the four liberal justices, Elena Kagan and Stephen Breyer, agreed that the court’s ruling on religious hostility was sufficient to ignore the rights of the same-sex couple. The case also had three concurrences and a dissent, suggesting that the court was just looking for a way out of a complicated case. I’m wondering if it was less a case of religious hostility than one of intra-court hostility. What it looks like they decided was to make a narrow decision that trampled over only a few civil rights.

The ruling is generally being described as narrow despite the 7-2 vote. It’s so narrow that the ruling was meant to be meaningless unless you were the gay couple, Charlie Craig and David Mullins, who brought the case or the baker/artist Jack Phillips, who refused them service. 

It seemed so meaningless that Colorado officials, from the Democratic governor to the Republican attorney general, said nothing in the ruling changed anything about Colorado’s laws that make it illegal to refuse goods or services because of sexual orientation. Whether it has any impact on the Civil Rights Commission, other than some nasty words from Republican state legislators, is another matter.

But, in truth, the case isn’t meaningless. Most states in the country do not protect discrimination against LGBTQ people. In most states, discrimination against LGBTQ people is legal. When Craig and Mullins tried to buy the cake, same-sex marriage wasn’t yet legal in Colorado.

Justice Anthony Kennedy, who has been the fifth vote in most pro-gay-rights rulings, wrote in his majority opinion that we’ll have to wait until future cases come before the courts to resolve these “disputes 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.”

In other words, this ruling does nothing except encourage bakers and cake artists and others to discriminate until the courts get the nerve to say they can’t. As a few experts pointed out, if it couldn’t find a better way to decide this case, the court should never have agreed to hear it.

Check your history if you think it’s meaningless. This ruling resembles pre-Brown civil rights cases in which the justices looked for the most narrow approaches to avoid ruling the obvious — that segregation was wrong. I’m sure that’s not what Kennedy intended, but whatever careful words he chose, the message to most Americans, the majority of whom will never read any of the opinions, is that there must be a religious defense for refusing to bake a cake for a same-sex wedding, even if the participants never asked the cake artist to do any artistry.

Phillips said he wouldn’t sell Craig and Mullins the most nondescript wedding cake because it would still represent his approval of a same-sex wedding. He said he wasn’t anti-gay and could prove that by his willingness to sell them anything else. That may seem unbigoted unless you consider this: What if they’d asked a tailor for a wedding coat and he would have told them he’d be happy to sell them a windbreaker?

We’re left to believe, although the court didn’t rule specifically, that the baker would have faced a different ruling in a similar case if the Civil Rights Commissioners were to say, “Thanks, Mr. Baker, for your sincere beliefs, which we respect and appreciate, and we don’t think you’re a bigot for acting like a bigot, but a good guy with whom the law just happens to disagree.”

Here’s what one commissioner did say: “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.”

You could argue, without much fear of contradiction, that religion has been used to justify all manner of discrimination — not limited to gay rights, but certainly including them. But by invoking slavery and Holocaust, by saying that it was “despicable” to use to religious rhetoric to hurt others, by questioning the role of religion in the public square, the commission afforded Phillips what ACLU’s James Esseks called a “get-of jail-free card.”

I’d put it another way. By failing to make clear that this was an obvious case of impermissible discrimination, the Supreme Court left the LBGTQ community with nothing more than a we’ll-get-back-to-you-later, maybe-much-much-much-later raincheck.

Balloons celebrating Monday’s U.S. Supreme Court decision at the front door of Masterpiece Cakeshop in Lakewood on June 4, 2018. Photo by Alex Burness. 

25 COMMENTS

  1. The SCOTUS is disappointing. This decision is awful.

    I hope everyone celebrating this sometime soon learns that they have a Gay boy or Lesbian girl or Transgendered them, in their young families, so they can experience a direct demand on their quotient of compassion.

    Shame on SCOTUS, Mitch, and you other nuts who stole Garland’s seat.

  2. Mike, I had to run thru your article, but I think you nailed it. Will come back later and read more carefully. I read most of the slip report. Thomas and Gorsuch still give me indigestion.

  3. I’ve been confused every time I’ve read the story of Phillips the baker — “he wouldn’t sell Craig and Mullins the most nondescript wedding cake because it would still represent his approval of a same-sex wedding. He said he wasn’t anti-gay and could prove that by his willingness to sell them anything else.”

    So, specially baked and decorated brownies or cupcakes would have been possible, but a “wedding cake” wasn’t. Seems like an extraordinarily fine theological distinction to me, one I have never understood as corresponding to anything I’ve read in the New Testament.

  4. John, you’re right. This was such a ludicrous splitting of hairs. The “good Christian man” has probably never fully read any Bible and listens to Faux News and other pontification from rightwing or evangelical pulpits. He’s definitely not studied any biology or civil rights. My guess is that he was fished out of some murky waters by the “Alliance Defending Freedom” and they pushed forward with their religious rights First Amendment crap.
    The political agenda of these right wingers is sickening…….they focus on regulating some very private behaviors of gays and women while the Doomsday Clock is nearing kaboom and global climate change is devastating people’s, animals’, and ecosystems existence.

  5. Tabitha, have you read the written opinions of the Justices? If not, you should so that you can understand the apples and oranges you’re comparing.

  6. The Court had nothing good to say about the CCRC commissioners who according to the article, acted with “impermissible hostility” something a government regulatory body shouldn’t be doing. That seems to be the larger issue in this case.

    Who were commissioners and are any of them still in the same job? If so, why? Shouldn’t Colorado be embarrassed that the highest court in the land call our Civil Rights Commission “imperishably hostile”? There’s a story here.

  7. Elections have consequences.

    “Hiding news that doesn’t fit an ideological or a partisan agenda is perhaps the worst form of media bias. And it’s one more reason the public holds the press is such low esteem.” – Investor’s Business Daily

    “(Mr. Trump) won’t be president. He was sliding in the polls before the video, and the video now means that he has no way to climb back. Which independent voter, which suburban woman, which Main Street Republican on the fence is going to vote for Trump now?” – Mike Littwin

    Magical thinking: The belief that one’s own thoughts, wishes, or desires can influence the external world. It is common in very young children. – Radiotherapy

    President Trump 306 Electoral votes
    Hillary Clinton 232

    #droptheMike

    }{

    Mr. Littwin—and this should surprise no one—-is still mad as hell and this time his ire is aimed at the Supreme Court. Not only did the Supremes decide in favor of the Colorado cake baker but the vote was 7-2 meaning, as Mr. Littwin pointed out, “that two of the four liberal justices, Elena Kagan and Stephen Breyer, agreed (with) the court’s ruling on religious hostility”.

    This was doubly disturbing for Mr. Littwin because it exposed not only how far out of touch he is with those who share his political views but how far out of touch he is with the highest court in the land. What the Supreme Court described as “sincere religious beliefs” Mr. Littwin labeled “bigotry”. You can’t get much further apart than that.

    But Mr. Littwin’s political tone deafness didn’t occur overnight, it started two years ago when Mr. Littwin wrote this gem: “(Mr. Trump) won’t be president. He was sliding in the polls before the video, and the video now means that he has no way to climb back. Which independent voter, which suburban woman, which Main Street Republican on the fence is going to vote for Trump now?”

    Mr. Littwin never tired of being wrong.

    That statement was, of course, not the only time Mr. Littwin went off the verbal rails. Here’s another one of his countless hyperventilating descriptions of President Trump: “a demagogue, a xenophobe, a misogynist, a bigot, a sexist, an authoritarian, a boor, a crypto-fascist and the least-prepared person ever to be nominated by a major party”

    But what Mr. Littwin has failed to explain is how “a demagogue, a xenophobe, a misogynist, a bigot, a sexist, an authoritarian, a boor, a crypto-fascist and the least-prepared person ever to be nominated by a major party” was able to defeat Hillary Clinton in what many have called the greatest upset in the history of American politics. Final score: 306 to 232.

    And since Mr. Littwin and the Supreme Court disagree so wildly on the meaning of the word “bigotry” you wonder how Mr. Littwin feels about the c-word.

    Last week on her TBS show “Full Frontal” comedian Samantha Bee said, “You know, Ivanka (Trump), that’s a beautiful photo of you and your child, but let me just say, one mother to another, do something about your dad’s immigration practices, you feckless c***!He listens to you, put on something tight and low-cut and tell your father to f***ing stop it. Tell him it was an Obama thing and see how it goes, OK?”

    White House press secretary Sarah Sanders said Bee’s language was “vile and vicious.”

    But former “Daily Show” host Jon Stewart was one of many who defended Ms. Bee.

    What does Mr. Littwin think? Is the use of the c-word ever defensible? Or does it depend on who is using the word? That answer would be interesting or at least amusing.

    November 08, 2016

    “’Cause I don’t have no use
    For what you loosely call the truth” – Tina Turner

    Flags of Valor
    Folds of Honor
    Special Operations Warriors Foundation

  8. The interesting phrase Kennedy used (quoted above) in the opinion was:

    “without undue disrespect to sincere religious beliefs”

    One might conclude that this implies that there are also times when disrespect to sincere religious beliefs can be “due”.

    If a government health official describes some religious cult that is letting its kids die for theological reasons (which by the way has recently actually happened in Idaho), as “despicable,” is that “undue disrespect” of religion? Or “due disrespect”?

  9. Don Lopez wrote:

    Not only did the Supremes decide in favor of the Colorado cake baker but the vote was 7-2 meaning, as Mr. Littwin pointed out, “that two of the four liberal justices, Elena Kagan and Stephen Breyer, agreed (with) the court’s ruling on religious hostility”.

    Actually, the seven Justices didn’t rule in the cake baker’s favor; they ruled against the Colorado Civil Rights Commission (CCRC), and merely tossed the case out. The Supreme Court basically punted on the substantive issues; they didn’t reverse any lower court ruling. And if you actually read the decision, you’ll see exactly who agreed with what issue. The two liberal justices would almost certainly rule against the baker if the decision actually reached the arguments both parties made. But the court didn’t.

    Which means that if Mr. Phillips or some other evangelical business owner foolishly discriminates once more against a gay couple, he will find himself right back in court, and in front of the CCRC, who the next time will be very cautious about saying anything judgmental about any religious beliefs, but will still rule that the baker violated Colorado’s religiously neutral, generally applicable anti-discrimination law.

    Justice delayed is justice denied, but in this case, the Supreme Court is basically declaring to everyone that it’s not going to decide this issue until a case arrives with a clean slate devoid of any bad facts or government mistakes.

  10. Mr. Lopez

    You are correct about their headline. But the baker only won implicitly, and basically on a procedural technicality that will not happen again in future cases. Which is why the headline is misleading, and why Littwin’s explanation above is correct.

    Indeed, in the article accompanying that NYTimes headline, I read through some 700 comments, and it was astonishing how many on the left and right were opining about what was going on, without actually understanding what the Court ruled.

    Here’s a pertinent legal commentary worth reading in full.

    At least read the first paragraph and the last sentence.

    The only issue that has been definitely decided by the Supreme Court is that governmental commissions need to be careful about what they say publicly when it comes to religion. Everything else is still up in the air.

  11. Don Lopez brings up the recent nasty words controversy over Samantha Bee and using the word c*nt.

    Many on the right are arguing an equivalence to the recent racist Rosanne tweet, but the two are not equivalent.

    Rosanne was “punching down”, whereas Bee was “punching up”. There is a moral difference.

    Here’s a worthwhile read on the subject by a smart person, Rebecca Traister.

  12. Mr. McKenna,

    It’s instructive to note that Samantha Bee has already apologized to Ivanka Trump “for using an expletive on my show to describe her last night, it was inappropriate and inexcusable. I crossed a line, and I deeply regret it.”

    That apology—-assuming it’s sincere—-strongly suggests she knew that regardless of what direction she was punching in, she was wrong.

    Do you believe it’s ever appropriate to call a woman a the c-word?

  13. Here’s another excellent explanation of the Justice Kennedy’s Masterpiece decision, explaining why it is nothing that the religious right or the LGBT community think it is, and why it bodes well for LGBT folk in the long run, and not so well for Trump’s Muslim travel ban in the short run. The article is written by one of Kennedy’s recent law clerks.

  14. Here’s another excellent explanation of how SCOTUS—on a 7-2 decision—lambasted CCRC commissioner(s) as being narrow-minded bigots of the SJW/snowflake variety.

    In the most egregious of the hostile statements, one commissioner blamed religion and religious freedom for slavery and the Holocaust and added that “it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” The Supreme Court held such statements “inappropriate” in an adjudicatory body charged with “fair and neutral enforcement of Colorado’s anti-discrimination law.”

  15. When is it not despicable to use one’s religion to harm others? It was despicable 2000 years ago. It was despicable in the middle ages. It was despicable during the Holocaust, and it’s despicable now.

    A local Christian evangelical pastor I know of recently characterized Jews, Catholics, Muslims, Buddhists, atheists, and the vast majority of everyone else who does not subscribe to his personal religious tenets regarding Jesus as, and I quote, “terrorist cells”!

    “When Jesus returns, the age of pluralism and tolerance will be over because when He returns, He will be come with a sword” is another horrid rallying cry of these theocratic evangelical fundamentalists. Pogroms here we come!

    Tolerance of belief has its limits, particularly after people are being harmed non-theologically. Jack Phillips freely chose to harm some people for purely personal, theological, incomprehensible reasons. That is, fundamentally, an immoral choice. And in this case it is a choice that is prohibited by a religiously neutral, generally applicable anti-discrimination law that he needs to obey or face the consequences, just like everyone else, religious or not (thankfully, Colorado does not have a RFRA statute that unconstitutionally confers privileges on only the religious).

    Whether a CCRC commissioner inartfully stated a fact about the centuries-old history of the devout persecuting, torturing, and killing everyone not in their sectarian tribe (Thomas Jefferson basically said the same thing) is immaterial to the final result, as Justice Ginsburg explained in her dissent. The majority in the decision are just using that to punt on deciding the merits before them.

    Actual harms must always trump theological harms in a non-theocratic country. Theological “harm” is merely cognitive dissonance inside a believer’s cranium when his or her beliefs are out of sync with reality.

    Phillips says he’s going to start making wedding cakes again, which kind of implies he’s going to unlawfully discriminate again. A new complaint eventually will be filed, and he will finally find out what the limits of harmful religious conduct are. As will we all. But make no mistake: it’s all and only due to Phillips’ own choices, and I, for one, have little sympathy for him and his fellow Christian Nationalists pretending they are persecuted when they are not.

  16. A local Christian evangelical pastor I know of recently characterized Jews, Catholics, Muslims, Buddhists, atheists, and the vast majority of everyone else who does not subscribe to his personal religious tenets regarding Jesus as, and I quote, “terrorist cells”!

    Wow. Great anecdote. Now do an Imam.

    This issue is hardly decided. I can’t help but think that it will be back at the Supreme Court soon and the Court will decide that bakers can’t use religious grounds to not serve gay couples.

    What Littwin missed in this column was the assholery of at least one CCRC commissioner in denigrating a Colorado citizen’s religious belief and, more importantly, a major contradiction in the Commission’s logic: In the ruling the Court cited inconsistent treatment by the Colorado Civil Rights Commission, noting three other local cases in which a customer asked bakeries to create cakes with an anti-gay marriage message, and the bakeries refused on the grounds that they disagreed with the message.

    Littwin’s column is a reactionary rant. Left-wing clickbait.

  17. Arizona appellate court sides with gay couple in Christian public accommodation discrimination case, citing Masterpiece Cakeshop in support of the decision.

    Read it and throw some confetti (and rice!) into the air.

  18. If a devout Christian fundamentalist goes into a store, asks for a product with a divisive biblical homophobic message on it, and gets refused, that’s NOT discrimination on the basis of religious belief, unless you can show that the bakery would sell that same product to an atheist or other-religious customer asking for the exact same message on it. That is the fatal flaw in the bogus attempt at analogy that the Christian activists asking for cakes with divisive and ignorant Leviticus quotes on them attempted. It is a biased and improper experiment that didn’t show that the bakeries were discriminating among customers on the basis of religion. All it showed was that the bakeries, like other businesses, had a right to pick and choose what to sell.

    A business can choose what to sell or not to sell, regardless of a customer’s status.

    What a public accommodation can’t do is decide to sell or not sell the same product based on the customer’s status when that status is protected under the law.

    It’s okay to put a sign in a store window saying “We reserve the right not to sell any product to Justice Neal Gorsuch.” It is not permissible to post a sign saying “We don’t sell to anyone wearing a crucifix around their neck.” Why? Because discrimination against people wearing crucifixes is going to be discrimination against Christians (“a tax on yarmulkes is a tax on Jews”), which the law prohibits.

    It’s really pretty simple. The law regulates how a business conducts itself with respect to customers in the greater public. If compliance incidentally conflicts with the business owner’s religious tenets, she or he needs to deal with that philosophical conflict privately rather than harm third parties.

    This is what the Supreme Court has already said in several related cases, all cited by the above most recent Arizona case.

  19. “That is the fatal flaw in the bogus attempt at analogy that the Christian activists asking for cakes with divisive and ignorant Leviticus quotes on them attempted.”

    Ignorant…wow! Here’s the quote:

    Leviticus 18:22

    “Do not have sexual relations with a man as one does with a woman; that is detestable.”

    That is some Christians’ belief. It absolutely is religious discrimination if a bakery refuses to print that on a cake. That you call it “ignorant” and want the state to force bakers to put gay marriage writing in cakes but not a Bible quote is you showing obvious bias. Hypocrisy. You’re fine with the state regulating speech if you don’t agree with the speech.

    And it’s also how you get more Trump.

  20. A bookstore that refuses to sell Korans to anyone might be characterized as anti-Muslim, but regardless, the bookstore is not discriminating against some protected class in its conduct with the public. It can choose not to sell Korans (or bongs or yoghurt or windshield wipers) for any reason it wants.

    A bookstore that keeps Korans in stock for sale to just about anyone, but refuses to sell them to a hijab-wearing woman, violates the anti-discrimination statute, no different from how Jack Phillips behaved.

    The issue is the same for other products, including other products that require an expressive effort to create. There may be an incidental effect on someone’s free speech rights, but that’s not enough in the law to overcome the duty not to discriminate in the public marketplace against protected classes.

    So the Supreme Court and many other courts have said for a long time.

  21. “A bookstore that keeps Korans in stock for sale to just about anyone, but refuses to sell them to a hijab-wearing woman, violates the anti-discrimination statute, no different from how Jack Phillips behaved.”

    You’re twisting yourself into pretzels in an attempt to justify discrimination. In this case Masterpiece didn’t “sell Korans”, they sold “books”. They choose not to sell “books” with a content that they find distasteful and against their beliefs. Similarly, the bakery(ies) that refused to sell “books” with a Bible quote on them because they found the Bible quote distasteful and against their beliefs.

    That you defend one business yet condemn another is truly Orwellian. Better than Littwin’s column which is just a rant and doesn’t address these issues, but Orwellian nevertheless.

    “All animals are equal, but some animals are more equal than others.”

    ― George Orwell, ‘Animal Farm’ (1945)

  22. It is not illegal discrimination to stock one’s store with a selection of products that does not include some product a customer might request.

    It is illegal discrimination for a public accommodation to pick and choose who to sell to on the basis of a protected characteristic of the customer. Regardless of the religious or political motivation of the store owner.

    There is nothing Orwellian about this in any way, shape, or form. The two scenarios are entirely different, and it is intellectually and legally incorrect to equate the two.

    As the post-Masterpiece Arizona Court of Appeals decision earlier this week, at paragraph 27, holds:

    “Simply stated, if Appellants, as an economic entity, want to operate their for-profit business as a public accommodation, they cannot discriminate against potential patrons based on sexual orientation. It bears repeating that [Phoenix’s anti-discrimination statute] regulates conduct, not speech. Accordingly, the conduct at issue is not the creation of words or images but the conduct of selling or refusing to sell merchandise—either pre-fabricated or designed to order—equally to same-sex and opposite-sex couples. This conduct, even though it may incidentally impact speech, is not speech. Further, allowing a vendor who provides goods and services for marriages and weddings to refuse similar services for gay persons would result in “a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” Masterpiece Cakeshop, Ltd., slip op. at 10.”

    This is a sound and time-honored legal analysis of the situation. The Christian [sic] right is going to have to learn that what goes on incomprehensibly inside their heads doesn’t justify harming other people in the public marketplace.

    Adios.

  23. “This is a sound and time-honored legal analysis of the situation. The Christian [sic] right is going to have to learn that what goes on incomprehensibly inside their heads doesn’t justify harming other people in the public marketplace.”

    Similarly, the gay [sic] left is going to have to learn that what goes on incomprehensibly inside their heads doesn’t justify harming other people in the public marketplace.

  24. The Masterpiece Cakeshop decision of America’s Supreme Court is its version of the 1990s “Don’t ask, don’t tell” military policy. Basically a legal dodge to gain time for societal acceptance before doing the right thing.

    In other words, cowardly.

    The Supreme Court of Canada, on the other hand, has just ruled 7 to 2 that a Christian Evangelical Law School cannot be accredited by the legal profession in that country when that religious school discriminates against LGBT people by requiring all students to comport with a biblically literal, antiquated, and harmful view that sex must only occur between a man married to a woman (and no doubt the head of the household at that).

    The Canadian decision is the proper result of Western secular rationality over the devout Christian’s irrepressible, incomprehensible, and timeless urge to harm others in the service of self-created righteousness (and religious peer pressure and conformity).

    The Enlightenment wins again, thank God.

    The US’s top court will get there eventually, perhaps by accepting the Arlene’s Flowers case currently knocking on its door. Stay tuned.

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