My first reaction was to repost this horrible news, U.S. Supreme Court Rules In Favor Of Anti-Gay Colorado Baker, and ask the question. "We can refuse to serve republicans and religious people, right?"
I do need to look further into that question, but in the mean time, one of Instinct's friends, Tim Peacock, from Peacock Panache, agreed to let me share his take on the ruling. You can read his entire SCOTUS ruling piece, Masterpiece Cakeshop Narrowly Wins Supreme Court Case, on his Panache website
Here's the bigger chunk of his explanation of what this ruling means.
Following oral arguments presented to the high court in December 2017, observers predicted a victory for the cake maker in being able to legally discriminate against LGBTQ people using his religious beliefs as a legal shield to circumvent state public accommodation law.
Following the 90 minute oral arguments before the U.S. Supreme Court today in the Masterpiece Cakeshop case, observers almost unanimously voiced concerns that the high court appears ready to side against LGBTQ public accommodation protections in lieu of granting a ‘religious liberty’ exception to business owners. Such a ruling would have a devastating effect on state and local level anti-discrimination laws meant to protect LGBTQ people from differential treatment.
The Washington Post offered similar thoughts:
Kennedy, who wrote the court’s 5 to 4 decision in 2015 saying gay couples have a constitutional right to marry, speculated about what might happen if a decision in baker Jack C. Phillips’s favor prompted requests for bakers across the country to refuse to make cakes for same-sex couples. Would the federal government feel vindicated? Kennedy asked.
On the flip side, just moments later, Kennedy sharply questioned Colorado Solicitor General Frederick R. Yarger. The justice seemed offended by a comment made during the deliberations of the Colorado Civil Rights Commission when one commissioner said: “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.”
At one point, Kennedy and some conservative justices raised the possibility that the proceedings against baker Jack C. Phillips had been infected by bias.
It would be this particular “possibility” that ultimately led seven of the nine sitting justices to rule in Jack Phillips’ favor. Using the argument that pointing out use of religious belief as a weapon to harm others – something Jack Phillips did when he used his religious beliefs to deny free market access to a gay couple – is a “despicable” form of “rhetoric,” the high court sided with the anti-gay cake maker.
We noted after oral arguments concluded:
Arguing that because the Colorado courts did not recognize Jack Phillips’ inherent right as a Christian to tell same-sex couples he would not serve them in his business open to the public, Kennedy appeared ready to side with the bakery and against LGBTQ people’s civil rights.
Noting the importance of the case, Justice Stephen Breyer commented during oral arguments that the high court should be careful as they do not want to “undermine every single civil rights law.”
But a decision allowing one exception to public accommodation law on the grounds of ‘religious liberty’ would be a Pandora’s box – something the left-leaning justices of the court pointed out.
They questioned who else in the business world could consider their product “art” protected by the First Amendment, offering the very slippery slope conservative organizations like Alliance Defending Freedom would indubitably seize upon in other cases they’re handing similar to the Masterpiece Cakeshop case.
Following those arguments, the high court clearly took Justice Breyer’s comments into account in finding a way to simultaneously rule in favor of Phillips while preserving the integrity of existing state and local public accommodation laws.
The Masterpiece Cakeshop majority decision is written as and is intended to be an “exception” case – a narrow decision not intended to be used as precedent in any future case. (Then again, that was the intent in Hobby Lobby and look how that turned out).
The court found:
As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments.
The high court added:
The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the [Colorado Civil Rights] Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism.
In the SCOTUSBlog live blog of the decision, Eric Citron noted:
The decision here looks intentionally factbound to me: This is more about how the Colorado Commission considered Phillips’ particular case, and substantially less about whether there might or might not be a right under the constitution to refuse compliance with a neutral law forbidding discrimination on the basis of sexual orientation in public accommodations. In that respect, this holding is not going to resolve the underlying politically charged controversy.
The majority opinion’s introduction confirms this. It states, “Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.”
What’s unclear – and SCOTUSBlog appears to agree – is if Phillips will have to go through another round of legal hearings beginning at the level the high court found unacceptably biased (the state civil rights commission).
Justice Kagain’s concurring opinion confirms the narrow-but-solid belief that Phillips did not receive an unbiased hearing. Arguing Colorado has the right to protect LGBTQ people, they “can treat a baker who discriminates based on sexual orientation differently from a baker who does not” adding the caveat that any hearing or case must “not infected by religious hostility or bias.”
Summing up the high court’s ruling, SCOTUSBlog’s Eric Citron added:
One version of the question presented in Masterpiece is: “Does the Constitution give wedding cake bakers a right to refuse service to homosexual couples on the basis of a religious objection, even if a State generally prohibits discrimination in public accommodations on the basis of sexual orientation.” That is the “Right not to bake a cake” version. The Court does not answer that question. Instead it holds that the way the Colorado commission considered Mr. Phillips’ case showed substantial hostility toward religion. That preserves the possibility that a State could enact a law prohibiting discrimination against homosexual couples and constitutionally apply it to a baker who refused service to a gay couple.
Which is to say, today’s decision is not the doomsday scenario many thought the case would be.
This may come off as an unpopular take, but the Supreme Court’s decision in Masterpiece Cakeshop is not a terrible thing. While in the short term Jack Phillips and the religious right wing community have cause to celebrate, the high court actually established some fairly strong groundwork and guidelines activists can work with to win future cases.
For starters, they clearly established the cause for their decision: bias. The state commission that heard Phillips’ case allegedly demonstrated bias against his religious beliefs when hearing the case – at least, that’s how the conservative side of the high court interpreted it. In the court’s majority and concurring opinions, this is repeatedly referenced.
The opinion’s first page establishes this, in fact:
The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.
While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion.
Kennedy took careful measure to cite the rights and privileges LGBTQ couples hold as recognized by the historic Obergefell v. Hodges ruling while balancing that with the notion that courts must be unbiased in reaching conclusions on breaches of those rights and privileges.
In his opinion, Justice Kennedy explicitly noted, “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved 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.”
This is clearly a road map for any state, going forward, to ensure their Tenth Amendment right to offer legal protection to LGBTQ people meets constitutional scrutiny.
On the flip side, the Masterpiece Cakeshop decision once again punts on making any substantial statement on LGBTQ civil protections and will undoubtedly be used by the anti-gay religious right to continue their legal battle against LGBTQ civil rights.
You can read the Masterpiece Cakeshop opinions here.
What do you think of Tim's interpretation?
Are we screwed?
Do you feel people will realize that this is a judgment on just this instance and not to be used to uphold further discrimination?
Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he’s worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.