The Masterpiece Cakeshop case can be summed up thus: Good decision, BAD OPINION. Before we as an evangelical community jump to thank the Supreme Court for any decision (or inversely, rebuke them), we must pay close attention to their reasoning because that’s what matters for future litigants and ultimately for ourselves, our families, and the whole of the faith-based communities in terms of First Amendment guarantees.
The Supreme Court handed down the long-anticipated decision in Masterpiece v. Colorado Civil Rights Commission on Monday morning, and immediately (and predictably) the evangelical community declared an enormous victory, particularly because the majority opinion was a 7-2 decision for the baker. But far from celebrating, I’m incredibly disappointed in the Court for its ridiculously narrow opinion that was based more on recognizing flagrant procedural bias than the substantive merit of protecting religious liberty.
Sure, I am absolutely delighted that Jack Phillips won. For him and his case and this particular instance, of course the Court correctly handed him the win. But the reasons the Court sided with Jack are indeed narrow and frankly disturbing, even though the vote was a 7-2 majority victory for Masterpiece.
This decision read like an open invitation from Justice Kennedy for future litigants to simply cure the problem of an overtly-biased arbiter and give the Court better facts to protect what Kennedy calls “indignities” toward the LGBT community, rather than a clear recognition that religious beliefs must be protected. When any person (LGBT or otherwise) demands that the government compel a faith-based individual to use their creative skills and talents by participating in an inherently religious event with which he or she fundamentally disagrees, the government has an obligation to protect religious liberty.
Far from protecting religious liberty, consider Kennedy’s closing remarks in the majority opinion:
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. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons [the overt hostility of the Commission] the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.
The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these 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.
This opinion did not resolve anything regarding the actual clash of issues here — free exercise of religion and freedom of speech versus the LGBT community demanding faith-based individuals participate in their gay marriages. Kennedy merely notes that “On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires.”
So what happens if the animus against Christians is not so obviously demonstrable? Kennedy gives us a preview of where he (and the majority Court?) may be headed:
Any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriage for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all circumstances of the case.
That’s it? So, the biased adjudicator just needs to be respectful and appear neutral in its denial of First Amendment protections to the faith-based community? Unfortunately, Kennedy’s suggestion is a fairly easy fix, even for a group usually openly hostile against Christians. The Court seems to be poised to hold against a similarly-situated artist, as soon as a government agent like the Colorado Civil Rights Commission punishes a faith-based business for discrimination without such clear and open hostility toward religion.
That’s frightening. But that’s clearly what Kennedy is prompting, rather than the majority standing firmly on the side of protecting religious liberty and fundamental rights for all. Tolerance must be a two-way street, and the Court missed a huge opportunity to clearly draw a line and limiting principle for provide guidance to future bakers, artisans, and faith-based business owners.
Based on how weak this opinion is, I’m actually surprised Ginsburg and Sotomayor didn’t make it a 9-0 just to try to show they aren’t always faith-based haters. They also missed a huge opportunity, and it’s genuinely remarkable that their own clear animus against religion has been able to go so long unchecked. This opinion evidences their inability to look past their own personal hostility against faith-based communities.
Concededly, this is a far better outcome than if the Court went the other way and allowed an openly hostile Commission to continue to be hostile, and perhaps this will serve to temper the LGBT community from future open hostility, but my fear is that those who continue to oppress Christians and desire government coercion will simply become stealthier in their attempts. Evangelicals would be wise to realize that the fight to preserve religious liberty and constitutional protections for faith-based belief is far from over. In fact, it’s just beginning.
Find Jenna Ellis on Twitter: @JennaEllisJDFI