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When a Cake is Not Just a Cake

June 4, 2018

Gay Wedding

I have rarely, if ever, read an entire Supreme Court decision, but I wanted to try to understand the rationale for the ruling on Masterpiece Cake Shop v. Colorado Civil Rights Commission which said that baker Jack Phillips could refuse to bake a wedding cake for a gay couple based on his religion. Pundits are saying that the decision was very narrowly stated and does not set a major precedent for the ongoing legal battle between religion and gay rights, but it strikes me as yet another important step favoring religious belief over secular law. If, as I do, you think that’s a bad idea, it’s time to pay close attention.

What I find fascinating–and a little frightening–is how differently the various justices approached and interpreted the same set of facts. In a nutshell, in 2012 two gay men asked Phillips to bake a cake for a wedding reception to be held in Colorado–before that state recognized same-sex marriage and before the Court decision that made such marriages legal nationwide (their actual wedding was in Massachusetts, where it was already legal). Phillips refused to bake a wedding cake, saying that doing so would violate his Christian religious belief that same-sex marriage was immoral. He would sell them other baked goods, but would not create a wedding cake because that would imply his approval of their union. The couple lodged a discrimination complaint citing a Colorado anti-discrimination law, and won before the state civil rights commission and state courts, including the Colorado supreme court, whose ruling was overturned by today’s Supreme Court decision.

The decision hinged principally on the majority’s view that “the Civil Rights Commission’s treatment of [Phillips’] case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.” I.e., that the commission was biased against that particular religious belief. The opinion, written by Justice Kennedy, highlighted the following statement by one of the commissioners as particular evidence of this bias:

“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination
throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. 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.”

Now that, to me, is nothing more than an obvious statement of demonstrable historical fact. But Kennedy and the other six justices who signed on to the opinion saw that as “impermissible hostility” to religious belief. Go figure!

The other major piece of evidence cited in the majority ruling (and other justices’ opinions–both supporting and dissenting)  was a series of cases involving one William Jack who had sought to have three Colorado bakers create cakes decorated with explicit anti-gay symbology and Biblical inscriptions. All three bakers refused on the basis that the messages were offensive and hateful, and the civil rights commission backed them up. Here it is important to note that there was never any discussion of decoration of the wedding cake in the Phillips case–he refused the order before it ever got to that point. The justices in the majority basically argued that if the Jack cakes could be refused, then the commission erred in not allowing Phillips to refuse as well–never mind that the bakers who turned down Jack did not cite religious reasons and that the only message in the cake Phillips refused to make was implicit, in that it would have been a wedding cake for two gay men.

In their supporting opinion, Gorsuch and Alito really went to town on this aspect, writing a–what’s the right term? Talmudic? Jesuitical? baroque? hairsplitting?–dissection of the nuances of the Jack cakes versus the Phillips case. In their too-clever-by-half discussion, Gorsuch and Alito assert that “to suggest that cakes with words convey a message but cakes without words do not—all in order to excuse the bakers in Mr. Jack’s case while penalizing Mr. Phillips—is irrational.” (Kagan, in her separate supporting opinion, ridicules this argument.) Gorsuch advances the idea that religious-based abhorrence of gay marriage is an embattled belief in need of protection. “It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.” And then this: “It is our job to look beyond the formality of written words and afford legal protection to any sincere act of faith.” Wow! Really??!! Like maybe, say, female circumcision? Forced marriage of 12 year old girls? Human sacrifice? There you have it, folks.

The arguments heretofore have been based primarily on the “free expression of religion” constitutional language, but Justice Thomas really steps it up in his supporting opinion going full out on the “freedom of speech” argument. Hilariously, much of it reads like a rave Yelp review for Masterpiece Cake Shop:

Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palate with a paintbrush and baker’s whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding.

Seriously, there’s more. (Sorry, I’m getting a bit moist!) He even helpfully provides the company’s website! Then there is an extended gloss on the evolution of the wedding cake and its meaning. Then more about what a religious man Phillips is and how he “routinely sacrifices profits to ensure that Masterpiece operates in a way that represents his Christian faith,” and won’t make Halloween cakes, or cakes with offensive messages, etc.

But Thomas’s main argument is that Phillips’ artistry is deserving of protection as free speech alone. “If Phillips’ continued adherence to that [traditional Christian] understanding [of marriage] makes him a minority after Obergefell, that is all
the more reason to insist that his speech be protected.”

Thomas can barely disguise his contempt for the ruling that legalized gay marriage.

In Obergefell, I warned that the Court’s decision would “inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to participate in and endorse civil marriages between same-sex couples.” … This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.”

Again, with the beleaguered Christian minority victimization thing. Who knew that the Christian religious right was on the ropes and barely hanging on?!

As usual, Ginsberg is having none of this nonsense, and in her dissent (joined by Sotomayor) she cuts right to the heart of the matter. She sees nothing to “evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decision- making entities considering this case justify reversing the judgment below.” She rejects the argument on the Jack cases, noting “the bakeries’ refusal to make Jack cakes of a kind they would not make for any customer scarcely resembles Phillips’ refusal to serve Craig and Mullins: Phillips would not sell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others…. What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.”

What is perhaps most disturbing about this ruling is that two reliably liberal justices bought the religious argument, even if only a little bit. Here we see an aggressive push by Gorsuch, Alito, and of course, Thomas to extend a dubious religious freedom further into secular affairs, and they are signaling that this is only the beginning of the counter-revolution by the religious right.

The fundamental problem here is that literally anything can be a sincere religious belief. Religion is, by definition, faith in something that cannot be proven to be real. Religion may sometimes encourage morality and concern for the well-being of others, but it is uniquely prone to abuse when combined with political power. Why, therefore, should it be given a more exalted status than belief based on science, secular philosophy, or simply pragmatic experience? Whoever made the statement cited by the majority opinion about the use of religious belief to justify forms of oppression certainly was not wrong. Why is it okay for religious people to denigrate and reject and actively discriminate against groups like LGBT people, but it shows “impermissible hostility” to be even slightly critical of demonstrably harmful religious beliefs that directly contradict secular values enshrined in the constitution?

I shutter to consider what will happen when giants like RBG are no longer around to push back against the anti-democratic forces now mobilized in this country. This is just the beginning.


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