Supreme Court Ruling a Bigger Slice of the Religious Liberty Cake


Having not carefully read the full decision, perhaps I’m missing something, but the common wisdom that the Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission was “narrow” appears to understate its significance.  Perhaps the spin is intended to allow people to continue denying how obviously totalitarian the progressive “bake the cake” view is.  The following is from a Catholic News Agency article summarizing the ruling:

… the Court ruled against the Colorado Civil Rights Commission, saying that in its proceedings with Jack Phillips, the commission “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.”

The Court came to this decision for two main reasons. First, the justices said, several statements made by commission members during formal, public hearings “endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.”

Of course, the ruling could have been broader, and the writing is the work of Justice Anthony Kennedy, so it leaves all sorts of fudge room for judges to impose their own views rather than following a strict rule of law, but as it is, the court pretty much makes the entire religious-liberty argument.  Consider this (abbreviated) paragraph from the ruling‘s summary section:

The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. … The Commission gave “every appearance,” of adjudicating his religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it, but government has no role in expressing or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate. … [T]he official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same.

Let me highlight a key phrase, in case anybody missed it:  “government has no role in expressing or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate.”  Kennedy vaguely writes that it’s conceivable that the government could find some way to achieve similar ends that doesn’t hinge on the legitimacy of beliefs — if the regulations are patently content neutral, for example — but the entire intention of “bake the cake” advocates has been to paint opposition to same-sex marriage as morally illegitimate and therefore illegal.

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Kennedy does give some detail on what sort of behavior he might exclude from the Constitution’s protection on page 12:

… any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages”…

In this example, the “goods and services” that “all purveyors” are presumed to be so generally applicable that the store owner must describe the proscription on a sign.  This implies that there is no material participation in the event to which he or she objects.  Somebody picks up a case of wine, say, and brings it to the cash register.  The law might, in this view, prevent the store owner from asking about the demographic qualities of the people who are likely to drink the wine or what sort of event it will be used for, but a store that prints custom labels for the bottles might justifiably decline to provide any that violate the owner’s beliefs.*

The ruling goes on to chastise the Colorado Civil Rights Commission for its “inappropriate and dismissive comments showing lack of due consideration for [the baker’s] free exercise rights and dilemma he faced” (13).  To be sure, one of the commissioners in this case was so absolutely explicit about his bias that the court needn’t interpret his point of view, and in future cases, people complaining to the courts about a similar bias might actually have to do some work to prove it.  However, the rhetoric of the “bake the cake” movement leaves little doubt that the bias would be palpable in most cases:

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 antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

Again, a future plaintiff might have to make the case that enforcement was not “fair and neutral,” but the legal principle is clear: religious beliefs are constitutionally protected, and government agencies must apply laws neutrally with respect to religion.  This isn’t a “narrow” affirmation of rights.

Yes, this matter may require additional cases to refine its principles to where it is no longer possible to spin it as somehow narrowly tailored to the specific case in question.  It would be healthier for our society, however, if the forces of so-called tolerance would take the lesson without the years of continued strife.


* It is important to note, however, that Kennedy uses an unfortunate example.  By his reasoning, a state could ban stores from putting up signs or other displays that some patrons might find offensive on the grounds that the speech might “stigmatize” them, which is a very dangerous door to open for the sake of a legal hypothetical.

  • Rhett Hardwick

    I have wondered why this case was not dismissed as de minimus, “the law does not concern itself with trifles”. It is not as though the baker would not even sell gays doughnuts. I am sure the opinion of the Justices was narrow because “bad cases make bad law”. Other possible outcomes could result in a Baptist baker being forced to burn his bible to generate heat to bake the cake.

  • ShannonEntropy

    “Yes, this matter may require additional cases to refine its principles…”

    The Left just prays that this decision is “narrow”. In fact it opens up not a can of worms, but a can of tornadoes

    A good place to start racking up case law her might be that case you posted about yesterday titled “

    • Rhett Hardwick

      This was in fact, a narrow case. The baker was refusing a wedding cake on religious principles. This presents a narrower question than a refusal of all service to all gays. Where we reach a problem with religious principles, versus the law, is that fundamentalists can textually demonstrate that the Christian Bible condemns homosexuality. Look at the hoops the Catholic church puts itself through to reconcile the question. “Love the sinner, hate the sin” this admits that homosexual behavior is a sin. So there is Christian uniformity on that question. Important to the case, one of the state commissioners was openly hostile to religion, noting that Christianity supported slavery. Considering that the court is not a legislative body, I thought they did fairly well. They will probably be seeking better cases.