On Monday, June 4, the U.S. Supreme Court decided a much anticipated case about marriage equality, a cake and the authority of the State of Colorado. But it did not decide the underlying questions that had created the anticipation.
In 2012, two men, planning a wedding (in Massachusetts, where gay marriage was at this time legal) wanted their reception in Colorado, where it was not. They asked Jack Phillips, the proprietor of the Masterpiece Cakeshop, in Lakewood Colorado, to bake them a cake. Phillips declined, saying that his religious beliefs would not allow him to help them celebrate a gay marriage.
The couple, Charlie Craig and Dave Mullins, filed a charge with the Colorado Civil Rights Commission, which has a statutory mandate prohibiting any discrimination against people based on sexual orientation in “a place of business engaged in any sales to the public.”
In Phillips’ view, he was not discriminating against Craig and Mullins on the basis of their sexual orientation. He was discriminating against the specific event for which they wanted a cake. He would have been happy, regardless of their sexual orientation, to provide either of them with a birthday cake, or provide either of them with cookies or brownies. “I just don’t make cakes for same sex weddings.”
But Phillips lost before the Civil Rights Commission, and the CRC’s decision was upheld by a state court of appeals and the state Supreme Court. While the matter was coming up through the judicial hierarchy, the U.S. Supreme Court, in 2015, decided Obergefell v. Hodges, which in effect required all states in the US to recognize same-sex marriages on parity with opposite-sex marriages.
That ruling by itself didn’t settle the Masterpiece Cakeshop matter. Indeed, the majority opinion in Obergefell includes language about how religions must be “given proper protection as they seek to teach the principles that are so fulfilling and so central in their lives and faiths.” So the Masterpiece Cakeshop decision, which seemed to pose clearly and dramatically the question of what is the extent of that promised “proper protection,” was eagerly awaited.
SCOTUS has now reversed the opinions of the courts below, and thus of the CRC, but it still has not settle in broad terms the issue of whether Phillips’ refusal to bake this cake is constitutionally protected. The majority opinion turns rather on a narrower procedural issue, contending that the commissioners in this matter conducted themselves improperly, making “inappropriate and dismissive comments showing lack of due consideration for” Phillips’ moral dilemma. The state of Colorado has a duty not to base its laws, or the administration/enforcement of those laws, on hostility to a religious viewpoint and, in this matter, the court found that Colorado had violated that duty.
For the moment, then, Phillips is off the hook. But (for all the opinion says) it could well be the case that the next exertion of such authority at his expense, or at the expense of another cake maker or flower arranger or wedding planner with similar religious convictions, will occur absent the marks of hostility the Court found on the record here, but come out the same way, and that the next exertion of such authority to get to the attention of SCOTUS will be upheld.
Meanwhile, the left and the right have a lot here to which they can and have reacted with characteristic aplomb.
Right Wing View
Both the left and the right, in US political history, has invoked religious liberty by way of advancing goals that go far beyond religious liberty. For example, the left’s attachment to a religious objection to a military draft, and its push throughout the Vietnam period to extend that to “conscientious objection,” was one instrument for opposition to the draft as such, and, beyond that, to the war the draft was being employed to wage. Likewise, the left’s dedication to the right to use peyote in religious ceremonies was one instrument in opposition to the criminalization of drug use in general.
Other and more recent examples of the invocation of religious liberty in pursuit of another cause, though, come from the right. For example, the right used religious liberty as a way of weakening Obamacare after its frontal attacks on that bill had failed. And, in this case, I believe it is safe to say that the right wants the courts to recognize the refusal to bake a wedding cake as an exercise of religious liberty not merely as a matter of devotion to religious liberty but because it wants to fence-in the practice of same sex marriage through social sanctions, the legal prohibitions having failed.
The theme of much conservative writing on this decision has been one of qualified optimism. “It is a victory for our side, although a small one,” would be a fair paraphrase of the theme.
The conservative blog RedState, Joe Cunningham observed that the decision was a narrow one, as discussed above. Still, he says, “we” (conservatives) “did get something out of it ….bureaucracy got a pretty stern reprimand from the nation’s highest court. And I do love me a rebuked bureaucracy.”
Conservatives should press the point, he says, by passing laws putting tighter leashes on what the bureaucrats can and can’t do in such cases.
David French, writing in National Review, quotes Winston Churchill, who once said, “nothing in life is so exhilarating as to be shot at without result.” Phillips, his cakeshop, and by implication social conservatives, were “shot at” by the CRC, the bullets missed them, and that is enough to exhilarate.
Daniel Horowitz, at Conservative Review, calls Masterpiece a “very minor victory” for conservatives, but one that might be useful in pushing “Congress and state legislatures to get back on the playing field and cement these rights.”
Left Wing View
Andrew Siegel, who is reliably liberal on cultural matters, writes at PrawfsBlawg, saying that the decision seems an intellectually sloppy one, even “by the Court’s own [low] standards in high profile, culture war cases.”
Even before the PrawfsBlawg item, Siegel had tweeted to much the same effect.
Siegel to the contrary notwithstanding, much of the leftist commentary on Masterpiece has been positive. Leftists are happy with the fact that the Court did not use “free exercise” as a trump card against the equality of gays and lesbians in the marketplace. The leftists, too, can say “this is a victory for our side, although a small one.” The very fact that, as one tweet put it, “they didn’t make LGBTQ discrimination legal” is seen as something of a victory.
Amanda Marcotte, writing in Salon, expressed disappointment that the Court had refused to speak more broadly on the underlying issue. Surely this is because she assumes from the breakdown of the votes that if the court had reasoned more broadly it would have said what she sees as the correct things.
Some of that sense of disappointment comes from the fact that Justice Kennedy, the author of the majority decision on Obergefell, is also the author of this one, and that activists who had loved his marriage-equality language in the one case probably would have expected more (and from their point of view, something better) from him in this case.
Still, Mark Joseph Stern, writing in the center-left Slate, expressed a common leftward attitude when he stressed the relative isolation of Justices Clarence Thomas and Neil Gorsuch on this. Only the two of them, in a concurrence, accepted the theory of the case that conservatives in the US have been pushing. Only they accepted the view that there is a free speech right, regardless of religion and attaching to all businesses operating in the public space, to refuse to bake a cake for a wedding of a homosexual couple.