With cake-shop ruling, high court urges respect for both sides
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The US Supreme Court today ruled overwhelmingly in favor of a Colorado bakeshop owner who had been punished for refusing to make a wedding cake for a same-sex couple.
Both parties in the case 鈥� Jack Phillips, the bakeshop owner, and the Colorado Civil Rights Commission, the agency that enforces the state鈥檚 anti-discrimination law 鈥� warned of the dire consequences of a broad decision favoring either side. So did many of the more than 100 friends of the court who filed supporting briefs. The court鈥檚 7-to-2 decision Monday limited itself to Mr. Phillips鈥� case, however, siding with the baker but reaffirming the broader right of states to prohibit discrimination against LGBTQ people in the marketplace.
The narrow decision represents the high court鈥檚 latest attempt to navigate tensions between the rights of same-sex people to marry and the religious-freedom rights of individuals who may object to such marriages. Support for the decision 鈥� albeit lukewarm 鈥� from left-leaning Justices Stephen Breyer and Elena Kagan and the American Civil Liberties Union, which represented the same-sex couple, suggests a way for states to successfully balance those tensions moving forward, experts say.
Why We Wrote This
The careful calibration of Monday's US Supreme Court ruling in the Masterpiece Cake Shop case resulted in no sweeping decision. Instead, it "invited us all to turn down the heat in the culture wars," says one legal scholar.
鈥淭his doesn鈥檛 change the ability of states to protect their vulnerable citizens in any way,鈥� says Craig Konnoth, a professor who studies the intersection of sexuality and the law at the University of Colorado, at Boulder.
鈥淲hat it might do is make people a little more careful in how they talk about these issues,鈥� he adds, 鈥渁nd I think being careful about the way you talk about delicate issues is a good thing.鈥�
Turning down heat in culture wars?
The case dates back to July 2012, when Charlie Craig and Dave Mullins, recently engaged, walked into Phillips鈥� cake shop in a Lakewood, Colo., and asked for a cake for their wedding reception. Phillips said that, while he would be happy to make them other products, he did not sell baked goods for same-sex weddings.
Two years later the Colorado Civil Rights Commission, which enforces the state鈥檚 anti-discrimination law, ruled that Phillips had violated the law and ordered him to either sell cakes for same-sex weddings or not sell wedding cakes at all. Appealing the decision, Phillips said he felt forced to choose between his religious beliefs and his life鈥檚 work.
The Supreme Court鈥檚 decision essentially rules that while states are allowed to apply neutral and generally applicable nondiscrimination laws to business owners and other actors in the economy, they cannot do so in a way that shows hostility to religious views.
When the commission heard Phillips鈥� case, it did show hostility, the high court ruled. Specifically, 鈥� written by Justice Anthony Kennedy, the court鈥檚 swing vote and the author of the 2015 Obergefell decision that legalized same-sex marriage 鈥� focuses on statements from the commission indicating hostility toward Phillips鈥� faith-based argument. Noting that one commissioner compared the baker鈥檚 argument with religious defenses of slavery and the Holocaust and that another described faith as 鈥渙ne of the most despicable pieces of rhetoric that people can use,鈥� Justice Kennedy wrote that when the commission considered the case 鈥渋t did not do so with the religious neutrality that the Constitution requires.鈥�
Significantly, Justice Kennedy added that 鈥渢he outcome of cases like this in other circumstances must await further elaboration in the [lower] courts.鈥�
Overall, he continued: 鈥淭hese disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.鈥�
In the opinion of John Corvino, dean of the Irvin D. Reid Honors College at Wayne State University in Detroit, that means that the justices 鈥減unted in a way that was instructive.鈥�
The decision 鈥渄idn't settle the hard questions, but it acknowledged that there are indeed hard questions here and that we won't do a good job of addressing them if we're too quick to label either side as 鈥榙espicable,鈥� 鈥� added Professor Corvino, co-author of the book, 鈥淒ebating Religious Liberty and Discrimination,鈥� in email to the Monitor.
鈥淚n doing so, it invited us all to turn down the heat in the culture wars 鈥� a result I very much welcome.鈥�
When it comes to anti-discrimination law, 鈥渢he biggest single principle ... is that no one is turned away,鈥� said Robin Fretwell Wilson, law professor at the University of Illinois College of Law in Champaign, speaking of the 鈥渄ignitary harm of being told, 鈥楴o, not you here.鈥� 鈥� That said, she added in an interview before Monday's decision, 鈥渢hat does not tell you who bakes the cake. That only tells you that the business serves a person.鈥�
鈥淚 personally think that anti-discrimination law can cotton, can allow room for a religious objection to the very thing being protected.鈥�
Lingering tension
The ruling itself is narrow and incremental, but in the context of the national tension between LGBTQ rights and religious freedom there are wins for both sides.
鈥淭his is a big win for the religious liberty of all Americans, including Americans who believe that marriage unites a husband and wife,鈥� said Emilie Kao and Ryan Anderson, of the conservative Heritage Foundation, in a statement.
鈥淎s the court also noted, 鈥榬eligious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.鈥� 鈥�
But, Ms. Kao added, 鈥淭his is a big deal not just for social conservatives, but a big deal for all Americans, that all the Supreme Court is saying is that there needs to be mutual respect, respect for both sides.鈥�
Meanwhile, for James Esseks, director of the ACLU鈥檚 LGBT & HIV Project, Phillips 鈥渨on the battle but lost the war.鈥�
The decision doesn't mean that Phillips, or anyone else, is now allowed to not sell wedding cakes to gay couples, he said in a conference call with reporters, so 鈥渙n the big issue the bakery was pushing on this case, getting a constitutionally based license to discriminate, they did not succeed."
鈥淲e read this decision as a reaffirmation of the court鈥檚 longstanding commitment to civil rights protections and the reality that states have the power to protect everyone in America from discrimination," he added.
That tension 鈥� states being allowed to prevent discrimination but individuals also being allowed to object to it 鈥� has not been relieved by today鈥檚 opinion, however. When are objections justifiable, for example? How can state anti-discrimination laws protect citizens without constricting the free exercise of religion?
With similar cases percolating in the lower courts, the Supreme Court is likely to have to address those questions in the future. (One similar case, involving a florist who refused service to a same-sex couple in Washington, could be heard next term.) The four separate opinions in this case authored by various justices, suggest those questions could be challenging to answer.
Justice Kagan wrote a separate concurrence, which Justice Breyer joined, elaborating on why they agree that states are allowed to prohibit discrimination in the marketplace so long as state actors don鈥檛 鈥渟how hostility to religious views.鈥� The concurrences from Justice Gorsuch and Justice Thomas, meanwhile, argued respectively for why Phillips should have his case re-heard by the commission 鈥� potentially setting the case up for a return to the Supreme Court 鈥� and why Colorado鈥檚 anti-discrimination law also violated his free speech rights, with Thomas saying that wedding cake-making is constitutionally protected 鈥渆xpressive conduct.鈥�
Those disagreements don鈥檛 even account for the dissent written by Justice Ruth Bader Ginsburg, and joined by Justice Sonia Sotomayor, which agreed with much of the majority opinion but argued that the court should have sided with Mr. Craig and Mr. Mullins.
This context makes Kennedy鈥檚 plea for a civil and respectful discussion of these tensions all the more important, experts say.
鈥淭he court is saying: This is an important conversation to have, but dammit we鈥檙e going to have a respectful conversation, and if we don鈥檛 have a respectful conversation we鈥檙e going to put it off. And I think that鈥檚 tremendously important,鈥� says Mark Aaron Goldfeder, senior fellow at Emory Law School鈥檚 Center for the Study of Law and Religion.
鈥淭his is a balancing test,鈥� he adds. Equality for the LGBTQ community and the free exercise of religion 鈥渁re all valid rights and they all deserve to be listened to, and that鈥檚 why it was so hurtful what the Colorado Commission did, which was almost to pretend there wasn鈥檛 another side to this question.鈥�
And in addition to essentially requiring all sides of this issue to not demonize another, Professor Goldfeder continues, today鈥檚 decision also narrows the issue down to one specific, albeit complex, question: 鈥淗ow does a tolerant society balance values at tension with each other without disparaging either side?鈥�
鈥taff writer Harry Bruinius contributed to this report.
