Nee Law Firm
The Supreme Court, The Baker, and The Wedding Cake by Kevin Diehl
A couple of weeks ago the United States Supreme Court issued its ruling in a high-profile case called Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Jack Phillips, the owner of Masterpiece Cakeshop, creates custom cakes for special occasions. But when Phillips refused to make a cake for a same-sex wedding because he believed that doing so would violate his religious beliefs, he found himself at the center of one of the most heated cultural battles of our time.
The gay couple who ordered the cake filed a discrimination lawsuit against Phillips. Jack argued that the First Amendment’s guarantee of free expression and freedom of religion protected his right to refuse to make the cake. But that line of argument didn’t convince the trial court, and the gay couple won the case. Phillips appealed the ruling, but the Colorado Supreme Court upheld it.
When the United States Supreme Court took the case, no one was certain which way the Court would rule. After all, in 2015, the Court’s 5-4 ruling in a case called Obergefell v. Hodges had redefined the meaning of marriage for the entire country.
But when the Court took up Jack’s case, it ruled in his favor by a 7-2 vote. In a somewhat surprising move, Justices Stephen Breyer and Elana Kagan, two left-leaning justices, sided with the more-conservative majority. Justice Anthony Kennedy, who is often seen as the swing vote on close cases, wrote the majority opinion in Phillips’ case. It so happens that Kennedy also wrote the majority opinion in Obergefell. He was a hero to the left then. Now, not so much.
At its heart Phillips’ case asked this question: could a business owner be compelled to participate in something – a same-sex wedding – that violated his firmly held religious beliefs?
You may have heard that the Court’s decision was a narrow ruling, and to an extent that’s true. The actions of the Colorado Civil Rights Commission (CCRC) figured prominently in the decision, and ultimately swayed the Court in favor of Phillips.
In writing for the majority, Justice Kennedy noted that the consideration of religious liberty was compromised by the CCRC’s treatment of Phillips’ case, “which showed elements of a clear and impermissible hostility toward the sincere religious beliefs” motivating Phillips’ objection to same sex marriage. Kennedy wrote that 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.”
One commissioner at that meeting stated that religious beliefs had, in the past, been used to justify other forms of discrimination, like slavery and the Holocaust. No other commissioners at the meeting objected to those comments comparing Jack Phillips’ faith to enforced human bondage and genocide.
Kennedy, and the majority, concluded that these “comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.”
Critics of the opinion have claimed that Phillips essentially got away with discrimination against gays. But Phillips didn’t discriminate on the basis of identity, and he has said that he would be “happy to create items for gay and lesbian clients.” He simply refused to support something – a same-sex wedding – that he believes is immoral.
In their brief to the Supreme Court, Phillips’ lawyers noted that Jack has refused to make other cakes on religious grounds. He has “declined lucrative business by not creating goods that contain alcohol or cakes celebrating Halloween and other messages his faith prohibits, such as racism, atheism, and any marriage not between one man and one woman.”
One of the other reasons Kennedy concluded that Colorado was motivated by anti-religious hostility in its ruling against Phillips was that, in previous cases, Colorado has protected the right of bakers who refuse to create cakes with anti-gay messages. This part of the Court’s opinion makes the decision a bit broader than has generally been portrayed by the media.
No matter how you feel about this ruling, or the larger issue of redefining marriage, it’s likely that this case won’t be the last of its kind. When the Supreme Court issued its ruling in Obergefell, the country was pretty evenly split on same-sex marriage. As recently as 2008, during the presidential campaign, Barack Obama said his Christian faith led him to support “traditional definitions of marriage,” which he described as a “sacred union” between a man and a woman.
Several years later, however, President Obama announced that his position had “evolved,” and he became a champion of same-sex marriage. But many Americans who held firm to their faith hadn’t made that journey of acceptance. Nonetheless, with the Obergefell decision, the Court delivered a swift and sweeping change to a foundational institution of Western civilization by legalizing same-sex marriage in all 50 states. In a single stroke, Obergefell took the issue out of the arena of public debate and compelled acquiescence on a sizable, less “evolved” portion of the public.
That’s why Jack Phillips’ case won’t be the last word on the issue. But, for now at least, religious liberty has prevailed.
by Kevin Diehl