Freedom of religion or freedom to censure…politely?
Last Monday the Supreme Court released it’s ruling on the Masterpiece Cakeshop v Colorado Civil Rights Commission case. In reporting the decision, most of the mainstream media repeated the words “narrow ruling” in their headlines. On the other hand, supporters focused on a victory for religious freedom. The decision was neither of those things.
In July 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, CO, and requested that its owner, Jack C. Phillips, design and create a cake for their wedding, which had already occurred in Massachusetts where it was legal at the time. Phillips declined to do so on the grounds that he does not create wedding cakes for same-sex weddings because of his religious beliefs.
The leftist reporting of the decision ignored how the Supreme Court works.
The Court rules on the issue placed before it. They almost always rule as narrowly as possible. The suit brought to the Court asked for the overturn of the Colorado Civil Rights Commission’s ruling based on its hostility to religious freedom. The Supreme Court found that in fact the commission was hostile to religion, as evidenced by commission member’s extremely open and blatant hostile statements.
That’s what the Court ruled on: They found that the commission was in fact hostile to religion in Jack’s case. Justice Kennedy wrote, “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”
On the other side of the issue, supporters of religious freedom focused on what the opinion didn’t say. They argue that the failure of the Court to affirm religious freedom invites further challenges—and Justice Kagan’s concurring opinion seems to support that. Supporters argue that now government remains free to discriminate against Christians—it’s just that they have to do it politely.
Government does not have the right to ridicule someone’s religious beliefs, or to limit his exercise of it –John Stonestreet, at the Western Conservative Summit.
But that has always been the case. While leftists desperately seek a silver lining in what for them is the dark cloud of a decision, some supporters of religious freedom seem to be looking into the dark cloud.
That again ignores the way the Supreme Court works. The justices seek to build an opinion that a majority of them can sign on to. It is decision by consensus. In coming to that consensus, some of the “harder edges” need to be filed smooth. Had Justice Kennedy’s majority opinion spoken more directly to religious freedom of expression over the “rights” of the LGBT activists to have their cake made by an unwilling artist, would Kagan and Breyer have come on board?
Not likely. That is suggested by the fact that Kagan felt the need to write a concurring opinion. A concurring opinion says, in effect, “I agree with the majority, but…”
An opinion that refers to the narrow grounds in question is not itself a narrow decision. An opinion that is agreed to 7-2 is also not a narrow decision. This is simply a common-sense opinion at confirms the First Amendment as written.
That is not to say that there is no cause for concern. Justice Kennedy also wrote, “Given the State’s position at the time, there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful.” [emphasis added]. Kennedy notes that the action occurred in 2012, before Obergefell made homosexual unions legal throughout the country. Civil unions were made legal in Colorado in 2013.
Where do we go from here?
This issue isn’t over. Kennedy’s opinion gives “great weight” to “[t]he exercise of their freedom on terms equal to others…” Can a baker today make the same decision as Phillips did and be protected? Can discrimination against Christians still occur if the Commission is at least outwardly neutral?
Possibly. But the Colorado Civil Rights Commission is not neutral. In this spring’s legislative session, the Commission’s authorizing law came up for sunset review. The Senate attempted several amendments to the law in order to try to provide some balance; all were rejected by the Democrat-controlled House. Republicans in the Senate caved.
Last year, the head of the Civil Rights Commission was nominated by the governor for a second term. This person is living with a same-sex partner and the head of a militant LGBT organization. The Senate refused to confirm the appointment; the governor let her stay on anyway.
The issue isn’t going away. This decision will not solve all the cases involving bakers, florists and photographers. Expect more to come.