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Analysis: Why Religious Liberty Proponents Should Be Relieved, But Not Triumphant, Over SCOTUS Ruling

The good news for pro-religious liberty Americans today is rather obvious: In a lopsided (by today's white-knuckle 5-4 standards) ruling, the Supreme Court has come down on the side of a Colorado baker who was punished by the state's so-called 'civil rights commission' for his refusal to prepare a wedding cake for a same-sex couple's commitment ceremony.  Just two liberal justices, Ginsburg and Sotomayor, dissented.  While this is a welcome outcome, on the core legal issue of religious liberty and public accommodation, today's verdict is murky and indecisive, for reasons we'll explore below.  

Many people -- including some of us who support LGBT rights -- were alarmed by Colorado's unconstitutional treatment of bakery proprietor, Jack Phillips.  During oral arguments, a number of key justices seemed to be similarly offended by the state's lack of respect for Phillips' religious views, for which his small business was heavily sanctioned.  By way of background, here is a piece detailing the treatment Masterpiece Bakeshop endured at the hands of officious bureaucrats, relayed by The Federalist's David Harsanyi:


It is worth mentioning that public accommodation laws have been on the books for a while. Phillips had never turned anyone away in his shop, and the incident at Masterpiece Cakeshop in 2012 went down before gay marriage was legal in Colorado, or anywhere else in the country, for that matter. In fact, at the time of the incident, Colorado’s constitution featured an amendment, passed in 2006 by a 56 percent margin, codifying marriage as a union between one man and one woman. (Disclosure: as a columnist at The Denver Post during these battles, I regularly argued in support of gay marriage.) The commission was not above retroactive punishment, however. At the time, being found guilty of violating civil rights laws didn’t only mean the end of Phillips’ life’s work. The punishment for refusing to make a special cake for a gay wedding was $500 and one year in prison per charge (jail time was only later amended out of the law when general public learned about the statute). The shop was not only ordered to alter its policy and start participating in gay weddings or else face debilitating fines, it was told to provide comprehensive staff training, ensure compliance, then file quarterly obedience reports with the government for two full years. 

Click through for more details about the high-octane fury and abuse this case generated.  The socially conservative Alliance Defending Freedom, which was heavily involved in this case, produced the following (clearly sympathetic) video documenting the bakery owner's ordeal. Listen carefully to some of the distinctions Phillips offers regarding the sorts of events for which he has, and has not, assented to employ his craft: 

Masterpiece Cakeshop would (and did) serve gay people on a regular basis, fulfilling nearly all categories of baked goods needs, for all comers. It would not, however, create custom cakes for same-sex wedding-style ceremonies (this episode played out prior to legalized gay marriage). Masterpiece declined to make specialized cakes for events such as bachelor parties and Halloween, as well, also on religious grounds.  Prior to the fateful 2012 confrontation, Phillips had directed same-sex clients to other bakeries for wedding-specific work, conflict-avoiding referrals that managed to avoid angry protests or lawsuits.  Crucially, the following context proved decisive, given rationale set forth in the High Court's decision, handed down this morning:

In 2015, a Christian activist named Bill Jack walked into three separate bakeries, one an erotic-themed shop, and asked for each to design a cake in the shape of a Bible, with one side saying, “God hates sin – Psalm 45:7,” and the other, “Homosexuality is a detestable sin – Leviticus 18:22.” On another cake, Jack requested that the bakery inscribe a Bible verse on one side: “While we were yet sinners Christ died for us – Romans 5:8” and on the other “God loves sinners.” In all instances, the proprietors refused to take the project. And why should any American be forced to create something that clashes against their conscience? So Jack, obviously hoping to prove a point, filed a complaint with the Colorado Civil Rights Commission. Christians, after all, are also ostensibly a protected class in the state. What to do? Well, the commission decided that bakers who discriminate against Christians were offended by content of the message and not the patron’s Christianity. At the same time, the commission claimed the opposite was true for Phillips, whom they asserted wasn’t offended by the gay wedding cake itself but rather by the sexual orientation of the couple.

'Pro-gay' cake makers' consciences were protected by Colorado's panel of civil rights arbitrators, whereas 'anti-gay' cake makers were forced into compelled, conscience-violating expression.  Why?  Because the commissioners claimed to have divined the root intentions behind each defendant's professed objections.  It was this disparate treatment, and the state-level bureaucrats' undisguised hostility toward Mr. Phillips' religious beliefs, that served as a key underpinning of today's SCOTUS result.  I'll repeat: The clear good news for First Amendment advocates is that Colorado's aggressive bureaucrats were handed a richly-deserved rebuke by seven justices.  However, the Court punted on the key question of whether, under parallel circumstances, another government tribunal could constitutionally mandate a similarly-situated small business (a baker, or florist, or photographer) to provide its artistic services to a same-sex wedding:


If another commission were to reach the exact same conclusion as Colorado's, while sufficiently disguising or neutralizing its antipathy for orthodox Christian beliefs (Colorado's arrogant crew didn't even attempt to do so, and thus received quite a lashing from the justices) and applying its standards more evenly, would that pass constitutional muster?  The unsatisfying news in today's decision is that we don't know the answer to that question, which the Court left open.  The justices chose not to establish a landmark, binding precedent in this case; that task has evidently been left for another day.  Essentially, religious liberty defenders have been handed a short-term victory, coupled with a longer-term question mark.  So where do we go from here?  This was my initial thought earlier:

What does that look like, practically?  Forgive me for quoting myself at length, but I wrote extensively on this subject both in End of Discussion, and also this 2017 post:

Now that gay marriage has prevailed nationally, it is important for our system to protect the conscience rights of traditionally-minded religious people -- Muslims, Jews, Christians, and others -- who cannot personally endorse such unions as a matter of faith.  We also chafe at the alienating premise under which all opposition to expanding marriage is framed as "hate."  Speaking for myself, I do not believe that any of this means that small, closely-held businesses (as outlined in the Hobby Lobby ruling) ought to be able to discriminate against same-sex patrons as a matter of course.  Businesses should not be allowed to deny basic services to gay people just because their employees or owners have religious objections to homosexuality.  Many Americans may not realize that outright discrimination against LGBT people on matters of employment, housing and public accommodation remains very much legal in a majority of US states.  This is unjust, and must change.  I also believe, however, that carve-outs for wedding industry-specific small businesses would be a reasonable accommodation that could help facilitate a public truce on these thorny and emotional questions.  Asking a religious baker or florist or photographer to serve gay clients in general is entirely appropriate under a fair understanding of public accommodation laws.

Yes, I recognize that a more libertarian approach would involve permitting any and all discrimination, then letting market forces like boycotts and protests sort things out.  The trouble is that this path has proven fraught with unhinged nastiness, fact-averse emotionalism, and ugly mob rule, exacerbating social tensions over these challenges, rather than nudging society toward a peaceable compromise. That is why I've been more inclined to endorse broad anti-discrimination protections for the LGBT community, with broad exceptions for religious institutions (encompassing houses of worship in addition to religious schools, hospitals, charities, etc), and narrow exemptions for small businesses adjacent to the wedding industry.  Because the institution of marriage is inherently religious and sacred to many believers, the government should not coerce a Muslim baker, or an orthodox Jewish florist, or an evangelical photographer into applying their creative talents and service to an event that fundamentally offends their religious beliefs (this does not apply, I should add, to government employees).


My conclusion in last year's essay -- written in anticipation of today's SCOTUS decision -- which I continue to stand behind: 

As the victors in this 'culture war,' gay marriage proponents would be well-served to allow dissenters a reasonable sphere of autonomy and breathing room to "opt out," as a modest concession in their overall "terms of surrender."  But in light of too many 'sore winners' appearing intent on exacting ideological revenge, the Court -- which has established a laudably strong record on First Amendment issues in recent years, ranging from speech to conscience protections, to debates over free exercise -- will have a chance to protect the constitutional rights of all involved parties.  I hope a majority of justices seize this opportunity.  I want to live in an America where gay people (like myself) can live our lives in peace, free to marry, and free from systemic legal discrimination -- and where people like this nice lady can live in peace, free to run her business without threat of government-imposed economic ruin due to her deeply-held religious convictions.

Legal protections against weaponized bigotry shouldn't be reserved for heterosexuals in this country, just as people of faith shouldn't be effectively barred from operating small businesses because they're unwilling to actively contribute to same-sex weddings through their professional creative expression.  In 2017, it's indisputable that the number of these 'conscientious objectors' within the wedding industry is limited and dwindling, so seeking and singling them out for legal retribution feels gratuitous and wrong...Gay marriage supporters have done an exceptional job of winning hearts and minds over a very short period of time.  Maintaining a course of magnanimity and persuasion (which can entail the simple but impactful act of living openly in one's community) is the best way forward, in my view.  This will sometimes require accepting that not everyone can or should be forced to comply with the new cultural norm in every public-facing facet of life.  In a free and pluralistic nation, we should embrace measured, equitable coexistence over coercion.


Authentic tolerance must be a two-way street, so I'd therefore hope that anti-gay marriage Americans would come to acknowledge and accept new legal and cultural norms, even if they don't agree with them (I'd underscore that attitudes have been shifting rapidly, including on the Right), while the swelling ranks of LGBT rights supporters would take their overarching victory in stride, without seeking to stamp out (or severely penalize) any and all vestiges of moral dissent.  Writing for the majority, Justice Anthony Kennedy -- who famously authored Obergefell, which legalized same-sex marriage nationwide in 2015 -- also espoused mutual toleration as an essential cultural/legal touchstone on matters such as these:

I agree wholeheartedly, but also fear that Kennedy's aspirational vision (and mine) may be naive in an age of zero-sum culture wars.  This issue has not been settled, and I can't help but suspect that it will take another (less narrow and more contentious) SCOTUS ruling to do so.  On that score, I'll leave you with this incisive question:

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