gracchusdixit

After a decades-long string of legally tenuous and sometimes logically absurd decisions by the Supreme Court of the United States, a new low was reached last week when the court handed down its ruling in a case called—I’m not kidding—Masterpiece Cakeshop v. Colorado Civil Rights Commission.  At issue was the question of whether an Evangelical Christian baker could deny his services to a same-sex couple on religious and free speech grounds.  The court decided that he could.  Given the court’s recent history, the decision itself wasn’t surprising.  What was surprising was the fact that Justice Anthony Kennedy, the most moderate of the court’s conservatives, a frequent swing vote, and a major voice supporting same-sex marriage, wrote the majority opinion.  Even more surprising was that two liberal justices signed onto that opinion.

The background is as follows:

In 2012, a same-sex couple walked into a Colorado bakery run by Jack Phillips, an Evangelical Christian.  They had recently been married and wanted to buy a wedding cake to celebrate the occasion.  Jack Phillips refused.  They were told they could buy donuts or fudge, but not a wedding cake.  The same-sex couple thereupon filed a complaint with Colorado’s Civil Rights Commission. Since Colorado law prohibits discrimination based on various grounds, including sexual orientation, the commission found probable cause that the Evangelical baker had violated the law.  The case was handed over to a judge, who agreed.  The baker appealed to a higher court, which denied the appeal and upheld the original finding.  Not satisfied, the baker, by now backed and funded by a legion of right-wing political and religious organizations, asked the Supreme Court to review the case.  Since the Supreme Court rarely interferes with lower court decisions unless egregious and obvious legal mistakes have been made, we should have known from day one that “the fix was in” when the court decided to hear what the baker had to say.

And so it proved.

The owner of Masterpiece Cakeshop claimed the following: (1) because his religion disapproves of same-sex marriage, and because his religious convictions are sincere, he should not be compelled to sell a wedding cake to same-sex couples; (2) because baking is a form of artistic expression, protected under the free speech provisions of the First Amendment, he cannot be compelled to bake or sell a cake celebrating an occasion he disapproves of, even if there is nothing about the cake—no inscription or imagery—that signifies approval; according to Phillips’ argument, the mere fact that the same-sex couple wanted to buy a wedding cake was transgressive enough.  That second, novel argument—which equated baking with artistic expression and therefore with protected speech—was added to the original case by Phillips’ attorneys, because they feared a simple claim of religious freedom would not be sufficient to justify discriminatory behavior.  As it turned out, they got it backwards.  The court largely ignored the second claim, which (no offense to bakers) is ridiculous on its face, in favor of the first.

Masterpiece Cakeshop v. Colorado Civil Rights Commission has been called a “narrow” decision, not because the vote was close but because the ruling focused on procedural rather than broad constitutional claims.   Justice Kennedy’s opinion kicked things off by stating:

The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.  While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion.

It went on to say:  

The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed.  But the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement.

There is little doubt that Justice Kennedy, by focusing on the question of “requisite religious neutrality,” was trying—if you will pardon such an obvious pun—to have his cake and eat it too.  This allowed him to rule in favor of the “sincere” religious beliefs of the Evangelical baker and still allow that gay Americans “can, and in some instances must” be protected against the discriminatory results of such beliefs.  The problem with that language is its slippery tentativeness.  “Can, and in some instances must” is very different from saying “should, and in all instances must”.  For the Supreme Court of the United States to equivocate on a fundamental question of discrimination is shameful.

In the final analysis, to call this ruling “narrow” misses the all-important point that, once you open the lid of Pandora’s Box even a crack, all sorts of evils come spilling out.  One of those evils is Justice Kennedy’s definition of what it means to be “neutral toward religion,” which amounts to saying nothing critical of religion at all, no matter how factual or justified that criticism may be.  

Of the seven members who sat on Colorado’s Civil Rights Commission, only two expressed opinions regarding religion.  One offered up the observation that religion has been “used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, and to me, it is one of the most despicable pieces of rhetoric that people can use…to use their religion to hurt others”.  

There is no evidence that Colorado’s Civil Rights Commission based its decision on those comments, let alone a general animus toward religion.  What’s more, even those comments cannot reasonably be construed as a denunciation of religion per se.  They merely point to historical facts that are indisputably true.  Religious beliefs were used to justify slavery and ideas of racial inferiority.  They were used to excuse the Holocaust.   They were—and still are—used to defend the subordination of women to men, of the poor to the privileged, of the powerless to the powerful.   

Does Justice Kennedy truly want us to deny such realities in the name of “neutrality” toward religion?  Does he truly want to protect bigotry in the name of religious freedom?  Does he truly suppose that “sincere” belief is a sufficient defense against prejudice and discrimination?  Where does argument end?  Can a conservative Catholic restaurant owner now decline to serve a person who has been divorced, because he “sincerely” believes divorce to be a sin?  Can an Evangelical hotel owner decline to accommodate a Jew, because he “sincerely” believes that the Jews killed Christ?  These are not academic or theoretical questions.  Southern racists invoked “sincere” religious beliefs, not eons ago but in my lifetime, to justify segregation and the suppression of African-Americans, and to deny them their civil rights.

A legal standard demanding complete “neutrality” regarding religious beliefs is utterly absurd, when those beliefs are themselves incapable of being “neutral”.   To believe, no matter how sincerely, in the inherent inferiority or wickedness of other human beings, and to discriminate against them as a result, is not a “religious freedom” that deserves protection under our constitution.  It is a plain-and-simple prejudice that deserves nothing but condemnation.