Column: Supreme Court’s Wedding Cake Decision Was Half-Baked

  • Baker Jack Phillips, owner of Masterpiece Cakeshop, manages his shop after the U.S. Supreme Court ruled that he could refuse to make a wedding cake for a same-sex couple because of his religious beliefs did not violate Colorado's anti-discrimination law Monday, June 4, 2018, in Lakewood, Colo. (AP Photo/David Zalubowski)

For the Valley News
Saturday, June 09, 2018

Well, they probably won’t be invited (and disinvited) to the White House like the Super Bowl champion Philadelphia Eagles, but U.S. Supreme Court justices certainly punted superbly in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case decided last week.

The court ruled, 7-2, in favor of Masterpiece baker Jack Phillips (Justices Ruth Bader Ginsburg and Sonia Sotomayor dissenting). Phillips had refused to bake a wedding cake for a gay couple in 2012, claiming that doing so would violate his Christian religious convictions. The couple filed a discrimination case with the Colorado Civil Rights Commission, claiming that Phillips violated the Colorado Anti-Discrimination Act, which prohibits discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services ... to the public.” The couple prevailed.

Phillips appealed to the Colorado Court of Appeals, but the commission’s finding was upheld. Phillips further appealed to the U.S. Supreme Court, which heard arguments on Dec. 5 and issued its ruling on June 4, overturning both the commission and the Court of Appeals.

Proponents of so-called religious liberty were exultant, but advocates for gay rights were cautiously hopeful, indicating the ambiguous precedential power of the ruling.

The majority opinion, written by Justice Anthony Kennedy, thread the needle carefully enough that “liberal” Justices Elena Kagan and Stephen Breyer even signed on, further indicating the ambiguity of the ruling. The cautious hope came from the specific hinge on which the ruling swung.

Kennedy was clear that Phillips prevailed because the Colorado Civil Rights Commission had expressed hostility toward Phillips’ religious beliefs. Had the commission treated Phillips with tolerance and respect for his religious beliefs, the Supreme Court may have upheld the commission’s finding of illegal discrimination. This narrow finding left anti-discrimination advocates to hope that future anti-discrimination decisions would be upheld as long as neutrality toward religion is evident. In other words, if you wish to succeed in suing for discrimination, don’t call out the discriminator.

This petty distinction is a logical fallacy.

Imagine, for example, a discrimination case based on race. A baker denies service to a person of color, while cheerfully baking for all white customers. Would the court ultimately decide against the person of color because a member of a civil rights commission had pointed out the bigoted beliefs of the baker? This hypothetical baker also has the constitutional right to be a racist. Would a ruling against him represent hostility toward his constitutionally protected racist beliefs?

I suppose someone might argue that Biblically based aversion to homosexuality is not the same as racism. I am unable to find a distinction.

In any such test of religious freedom vs. public accommodation, a claim of discrimination will be tacitly based on antipathy toward the religious beliefs that motivated the baker (or butcher or candlestick maker). The laws that protect individuals from discrimination based on sexuality or gender identity were crafted specifically to reject religious beliefs that are inherently bigoted. While I suppose there are some people who disdain gay folks for some other reason, the basis for nearly all organized anti-gay activity is Christian faith. I recognize that this is not a universally embraced tenet of Christianity, but to deny the correlation is foolish and insincere. The resistance to every advance for LGBTQ rights has come from religious organizations.

Our country was founded on the principle of equal rights for all people — a principle admittedly and shamefully violated throughout our checkered history. Of course plaintiffs in discrimination cases are expressing “hostility” toward any religion that preaches or practices anti-gay bias, just as plaintiffs in civil rights cases are hostile to racism. I guess gay folks are just not allowed to say it.

The ruling in this case is one more example of the continuing second-class citizenship of LGBTQ Americans. In most states, discrimination on the basis of sexual and gender identity in employment is legal. Efforts to pass the federal Employment Non-Discrimination Act or similar protection for LGBTQ folks have failed since 1974. LGBTQ folks do not enjoy full citizenship in America and religious “beliefs” are the reason.

The Supreme Court essentially ruled that we should have greater tolerance and acceptance for the beliefs of a religious baker who illegally discriminated than for the gay couple against whom he discriminated.

Claiming that Phillips didn’t get a fair hearing because his bigotry was pointed out is ludicrous.

Steve Nelson lives in Boulder, Colo., and Sharon. Email him at stevehutnelson@ gmail.com.