On Monday, the Supreme Court ruled that a religious Christian baker could not be forced to bake a cake for a same-sex wedding – but only if the commissioners in charge of making such a decision were particularly mean to the Christian baker. That’s the actual holding. While you may be reading excited conservatives and Leftists claiming that the Supreme Court actually ruled in favor of religious freedom or religious tyranny, respectively, the case did nothing of the sort: the case merely stated that adding a layer of cruelty to a ruling against religious freedom made it unpalatable. Were commissioners to act in a “neutral” way and reach the same outcome, however, that might be just dandy.
First, let’s rewind.
This case featured a religious Christian baker, Jack Phillips, who was asked to decorate a wedding cake for a same-sex wedding. He refused. The same-sex couple heroically complained to the Colorado Civil Rights Commission, which attempted to fine Phillips into oblivion.
Now, this could implicate three separate constitutional questions. First, there’s freedom of speech. Is decorating a cake a form of speech? Justice Gorsuch writes in his concurrence that it obviously is; decorating a cake is a form of art, and therefore protected expression.
Second, there’s freedom of association. The Constitution was long understood to guarantee people the right to do business with whomever they chose. That right has been abrogated in recent decades by anti-discrimination law – well-intentioned, but burdensome. As a firm believer in core freedoms of association, I believe that the government has no role in telling private businessowners whom to serve. That doesn’t mean I agree morally with the choices people make about whom to serve – I think it’s idiotic not to bake a cake for a gay person, a black person, a Jew, or whomever. But I also think that’s an issue the government has no role policing, since I have no right to anyone else’s services at the outset. Capitalism does a rather fantastic job of policing such discrimination, given that other shopkeepers can cater to everyone, broadening their market and thereby increasing sales at the expense of those who discriminate. There is a reason that Jim Crow was made law in the South, and not merely left as a social convention: capitalism would have broken down that social convention.
Finally, there’s freedom of religion. The Constitution has two separate clauses dealing with freedom of religion that really ought to be read in tandem: freedom of exercise and non-establishment of religion. These clauses were meant to be two sides of the same coin: the state could not establish a religion and thereby crack down on the free exercise of religion. Laws of neutral applicability, however, could in fact abridge certain religious freedoms.
The Court in this case chose to rule only on the last question. And even there, they didn’t answer whether a law of neutral applicability could force a baker to bake a same-sex marriage cake. They merely stated that the Colorado commission had not applied its rules in neutral fashion. Here’s addlepated Justice Kennedy:
The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided….The outcome of cases like this in other circumstances must await further elaboration in the courts…
So presumably, if the Colorado commission had said nicely to Phillips, “Dear sir, we understand your honestly-felt moral quandary, but feel that times have moved beyond such discrimination, and thus your religious objections must take a back seat to civility,” they could tell him to do whatever they damn well pleased.
The fact that we have arrived at this point in Constitutional jurisprudence in the first place is an utter joke. You don’t have the freedom to speak, so long as the government labels your speech public accommodation; you don’t have the freedom to associate; you don’t have freedom of religion so long as the government speaks nicely while taking it away from you – or at least, that’s the next step in the line of cases Kennedy would surely endorse.