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.