The Supreme Court Just Sided With The Baker Who Wouldn't Make A Gay Wedding Cake. What Does It Mean For LGBT Rights?
The case of a Colorado baker who refused to bake a gay couple's wedding cake has been brewing since 2012, when the Colorado Civil Rights Commission ruled that the decision violated the state's public accommodations law. The baker, Jack Phillips, argued that his cakes were a form of expression and that compelling him to make them for gay weddings violated his First Amendment rights to freedom of religion. The Colorado Civil Rights Commission maintained that Phillips choice not to bake the couple a cake was a form of discrimination that violated Colorado law.
Many court-watchers believed that the decision in the case would significantly expand or shrink LGBT rights and define the intersection of freedom of expression and expanding civil rights for minorities. The decision that the Supreme Court published Monday in favor of Phillips, however, is not so black and white.
The Ruling Was Narrowly Tailored And Didn't Answer The Big Questions
While the decision in the case could have addressed the big question of how free speech rights interact with discrimination protections, it instead focused on small factual details in the case — deciding that in this instance, the baker's rights to free speech were being impacted by religious bias.
Although Phillips prevailed today, the opinion by Justice Anthony Kennedy rested largely on the majority's conclusion that the Colorado administrative agency that ruled against Phillips treated him unfairly by being too hostile to his sincere religious beliefs. The opinion seemed to leave open the possibility that, in a future case, a service provider's sincere religious beliefs might have to yield to the state's interest in protecting the rights of same-sex couples, and the majority did not rule at all on one of the central arguments in the case – whether compelling Phillips to bake a cake for a same-sex couple would violate his right to freedom of speech.
Kennedy Suggests That States Can Enforce Non-Discrimination Laws Without Bias
Justice Kennedy repeatedly affirms LGBT equality throughout the decision, and suggests that non-discrimination laws pertaining to the sale of goods and services can continue in ways that don't clash with freedom of expression.
But Kennedy's opinion is also littered with dicta that shows states how they can enforce LGBTQ non-discrimination law without crashing into constitutional problems. He approvingly describes states' authority "to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services." He clarifies that "gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth." And he reaffirms the basic principle that religious objections "do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."
These asides suggest that Kennedy — unlike Thomas and Gorsuch — would not promulgate a broad free speech rule that allows businesses to discriminate against gay couples with impunity. He has, in effect, given states a roadmap, explaining how they can enforce LGBTQ civil rights laws without triggering free exercise concerns.
[Slate]
The Colorado Civil Rights Commission Goofed
While the decision itself was narrow in scope, the vote was anything but. With a 7-2 vote, the justices overwhelmingly agreed that the Colorado Civil Rights Commission expressed poor judgment:
What we do know is that the Colorado commission royally messed up, calling Phillips' beliefs "irrational" and "offensive." Agree or disagree with that characterization, passing such judgment is not the government's business. That's how Justices Kagan and Gorsuch were able to agree on the outcome of this case. The First Amendment requires government officials to be neutral toward religion, and the Colorado civil rights commission was not.
The Admonishment Of Religious Hostility Could Preview The Travel Ban Decision
Largely, the decision's focus on religious hostility could be read as a preview of the Court's decision on President Trump's travel ban, according to Bloomberg's Noah Feldman.
Intriguingly, the decision can be understood as a hint that President Donald Trump's Muslim travel ban may be struck down later this month, as the travel ban can be read as expressing hostility to Muslims. The two most pragmatic liberal justices, Elena Kagan and Stephen Breyer, concurred in the Masterpiece Cakeshop decision – which suggests that they wanted to show Kennedy they are on his side against religious hostility, and want him to vote with them on the travel-ban case.
The Decision Isn't Harmless For LGBT People
In The Nation, Sarah Posner argues that the decision illustrates a toxic logic which will have a negative impact on LGBT people in the near and far future.
Kennedy's decision demonstrates that this Court has absorbed some of ADF's arguments about the supposed conflict between LGBTQ equality and religious liberty, and has adopted a potentially wide-ranging definition of government "hostility" to religion. If the Court can accept claims of government "hostility" on the tepid evidence on offer in Masterpiece, it will embolden other Jack Phillipses to refuse to serve LGBTQ customers, and to hope for a "slip-up" by a public official as uncontroversial as "religion should not be used as an excuse to discriminate."
