Not A Piece of Cake After All



A seemingly minor dispute over a wedding cake that should have been settled in Judge Judy’s court has now become a serious threat to what is left of this country’s anti-discrimination legal doctrine. The case, now known as Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, was argued in the U.S. Supreme Court last December 5 and is due to be decided this coming June or earlier.

The case began in 2012 when two men, Charlie Craig and David Mullins, went to the Masterpiece bakery near Denver to order a cake for their upcoming nuptials. The shop’s owner, a self-described Christian named Jack Phillips, humiliated the gay couple by refusing to make them a cake on the basis of his allegedly religious belief that marriage should be limited to persons of opposite sexes.

As it happened, Colorado has had a law since 1885 that requires businesses open to the public to treat their customers equally, a law that was specifically amended in 2008 to prohibit discrimination against customers on the basis of sexual orientation or a number of other such characteristics. The state civil rights commission accordingly found that Masterpiece and Phillips were in violation of state law, and the Colorado courts reviewing this decision—which was not at all extraordinary—upheld the finding of discrimination.

After some delay, the U.S. Supreme Court decided to hear the bakery’s appeal of the state courts’ resolution, and the case is now ripe for a decision. Despite the efforts of attorneys in and around this matter to re-characterize it as something else, the question in the cake-shop case is clearly and simply whether a person’s asserted religious belief entitles him or her to disregard anti-discrimination requirements imposed on all other citizens by statutory and constitutional provisions.   Obviously, the answer has been and should continue to be “no.”

For one thing, the exemption claimed by the cake shop and its owner in this case depends entirely on an asserted “Christian” belief that supposedly says gay marriage is immoral and unacceptable. But what does that even mean? There are hundreds of Christian sects and denominations in our society, accompanied by individual variations and by texts and other manifestations said to be divinely inspired. How is a court expected to determine whether a claim of Christianity or religiosity is genuine, without conducting a sort of Spanish Inquisition-type inquiry that our country hopefully would never tolerate?

More to the point, even if the true believers can be separated from those who will say anything out of hatred or political calculation, how can we allow each Christian (and others) to decide for themselves which laws they will follow and which they are entitled to disregard? As Justice Breyer put it during the Supreme Court argument in the Colorado case, such a result would “undermine every civil rights law since year 2.” Unfortunately, doing just that could be the motive of those who bring or support some of these “religious liberty” challenges. (Note that the Trump Justice Department is supporting the cake-maker in this appeal, despite if not because of the threat to other civil rights protections.)

At first, the Masterpiece appeal caused no great commotion, although it might have been an omen that the Supreme Court took it at all. But the wheels really started to come off during the argument itself. As expected, the Court’s liberals (Breyer, Ginsburg, Kagan, and Sotomayor) sounded ready to back the gay couple and the principle of non-discrimination, while the conservatives (Alito, Gorsuch, Roberts, and Thomas [though silent]) seemed to take a peripheral “what-if” route to trashing the underlying state law and upholding the baker’s objection.

But then Anthony Kennedy, often the Court’s “swing” justice in cases such as this, seemed to forget that he is the author of three highly sympathetic majority decisions that have established the rights of gay individuals and couples on a national level. For some reason he opined that it was “too facile” to say the cake-shop owner had discriminated against his customers on the basis of their sexual identity; and then he soared into the ozone with a series of remarks about tolerance—not for the gay couple but for the baker.

“Tolerance is most meaningful when it’s mutual,” Kennedy remarked during the argument. “It seems to me the state in its position has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.” It may be that Court followers have read too much into off-the-cuff statements made during argument; but it also may be that Kennedy, a product like most justices of cloistered appellate environments, now feels that his prior decisions are final and self-executing.

Justice Kennedy may not know or remember that implementation of major constitutional change is a messy business, involving all sorts of unforeseen complications and endless attempted challenges by those who do not agree. For whatever reason, his attitude at argument seemed to be “we already decided this, now let’s move on,” and he did not seem committed to making sure his landmark gay-rights decisions had their intended effect on people’s lives. Did he not anticipate that some people would continue to resist?

Another indication of the way the wind is blowing was a recent column by the New York Times’ Ross Douthat, a conservative but generally balanced commentator on the passsing scene. According to Douthat, because the Supreme Court’s gay rights decisions have unnerved religious conservatives, “our country would be better off if [Jack Phillips] were left alone to bake his cakes.” In order for conservatives to “stop panicking about Shariah law every time a mosque goes up nearby,” Douthat says, Justice Kennedy should “balance his [gay marriage] decision with a panic-defusing counterpoint.” We all have to find a way to live together, the article concludes, and the way to do that is to “leave the baker alone.”

This column in one of our few remaining great newspapers is especially notable in that it bleeds for those who oppose gay marriage even though it leaves them free to marry whomever they want—but it includes not one word of sympathy for Charlie Craig and David Mullins, who are the only victims here and who were humiliated and degraded for aspiring to the dignity of marriage? Why hasn’t anyone said that, speaking generically and not theologically, the proper “Christian” or “godly” response to two strangers’ innocently seeking to celebrate their love would have been bake them up the very best wedding cake the Masterpiece Cakeshop had ever made? Contrary to Douthat’s and others’ one-sided view of things, that response would have done more to make the world a better place than denying the gay men’s rights just to even the score.

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