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GOTTRY: Tolerance And Respect Are Two Separate Concepts

Well, that celebration was short-lived.

On June 4, the U.S. Supreme Court handed down its ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission. While the ink was still drying on the decision, some pundits and advocates lined up to declare that the 7-2 victory for Jack Phillips and Masterpiece Cakeshop is little more than a guidebook for a future defeat.

The thrust of the argument goes like this:

  1. Justice Anthony Kennedy was primarily concerned with the “clear and impermissible hostility” that the Colorado Civil Rights Commission demonstrated toward Jack and his beliefs.
  2. Justice Kennedy was also adamant that “purveyors of goods and services” should not be allowed to act in such a way as to “impose a serious stigma on gay persons.”
  3. Therefore, if government entities simply say it with a smile next time, they will be allowed to strip Jack and others of their First Amendment freedoms.

That sounds awful. It does not, however, sound accurate.

The Supreme Court’s concern is not simply that the government replaces hostility with respect. Justice Kennedy indicated during oral arguments that more than mere respect is required. He specifically stated that “the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs” (emphasis mine).

Writing for the majority, Justice Kennedy echoed this refrain, stating that “the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of his religious beliefs” (emphasis mine).

The court addressed the commission’s outright hostility toward Jack because it was unavoidable. As Justice Kennedy wrote for the majority, that hostility was an assault on “the religious neutrality that the Constitution requires.” This hostility alone required the court to set aside the commission’s order.

But the court’s order fails to fully answer the question of what tolerance requires.

And to the extent that the opinion provides some guideposts for that determination in future contexts, it does not forecast a defeat for First Amendment freedoms. To the contrary, the boundary lines that have been sketched out leave ample space for a two-way street of tolerance.

Let’s consider what Justice Kennedy actually said in the majority opinion.

The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the … rights and dignity of gay persons…. The second is the right of all persons to exercise fundamental freedoms under the First Amendment…. (Opinion, at 1-2)

By acknowledging the need for a reconciliation, Justice Kennedy acknowledges there is room for reconciliation. Constitutionally guaranteed rights can coexist with socially valued principles of nondiscrimination. The trick is simply to find the proper balance.

Now, what balance may be found? The opinion suggests a way:

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth…. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. (Opinion, at 9)

Here the opinion says that LGBT persons and same-sex couples should be afforded freedom “on terms equal to others.” This includes those with “religious and philosophical objections to gay marriage.” Kennedy confirms as much when he condemns the commission for “implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.”

He is essentially validating his remarks during oral arguments. First, “tolerance is essential in a free society.” And second, “tolerance is most meaningful when it’s mutual.” This might be the most pointed rebuttal to those naysayers who claim Justice Kennedy is inviting future conscience cases to be resolved by a more respectful infringement on First Amendment rights. After all, can you really label a society as “mutually tolerant” if it declares “decent and honorable religious” beliefs—language the Supreme Court used in Obergefell—wholly unwelcome in the marketplace?

But the question remains, how can a creative professional like Jack peacefully live and work consistent with his beliefs without violating the parameters that the majority opinion identifies? The opinion provides the framework for an answer, buried in the background section: “the ALJ [administrative law judge] determined that Phillips’ actions constituted prohibited discrimination on the basis of sexual orientation, not simply opposition to same-sex marriage as Phillips contended.”

While the ALJ reached the wrong conclusion, the Supreme Court highlighted a distinction key to reconciliation: namely, there is a difference between opposing an idea or an event and opposing an individual. And this is a principle that Jack Phillips has proclaimed since the case’s inception—he serves all people but cannot celebrate all events or express all messages.

Jack’s conviction not to celebrate messages or events contrary to his faith does not amount to discrimination against a person or class of persons. And no one should be bullied or banished from the marketplace for peacefully living out the belief that marriage is the union of a man and a woman.

In a tolerant society, we should expect creative professionals to serve all people. But in a tolerant society, we should also protect their freedom to decline to celebrate events or express messages that conflict with their conscience.

It’s true, the Supreme Court’s decision does not tell us everything that tolerance requires. But it left itself ample room, in future cases, to protect the constitutional freedoms of all Americans.

James Gottry is legal counsel with Alliance Defending Freedom, which represents Jack Phillips and Masterpiece Cakeshop.

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