WASHINGTON, June 4, 2018: In its eagerly awaited decision on a Colorado bakery and gay rights, the Supreme Court punted. The Masterpiece Cake Shop is safe, for now. However, gay rights are the same and the door is left open for new challenges by the Civil Rights Commission.
What was the case about?
Christian conservatives and gay rights supporters had all hoped for a definitive answer to one question: Can Christian-owned businesses be compelled to provide goods and services to same-sex weddings? In its 7-2 opinion on Masterpiece Cake Shop v. Colorado Civil Rights Commission, the Court all but ignored that question. It answered a different question – can the state express hostility to those who hold religious beliefs when deciding issues of civil rights? – with a crystal clear “no.”
What was the case about?
Masterpiece Cake Shop, a Colorado bakery, is owned by Jack Phillips. Phillips is recognized as an expert baker, and in that capacity, a same-sex couple asked him to create the cake for their wedding. Phillips is also a devout Christian whose beliefs reject same-sex marriage, so he declined the commission.
Unwilling to take “no” for an answer, the couple filed a complaint with the Colorado Civil Rights Commission. The state of Colorado forbids discrimination on the basis of sexual orientation in public accommodations. Phillips’ bakery is a public accommodation under the law, and a judge ruled that it had violated the couple’s rights.
Gay rights: Just how protected are they?
At one level, almost everyone agrees: Walmart can’t refuse to sell you a frozen cake from its freezer for any reason save your lack of funds and your failure to wear a shirt or shoes. In particular, they can’t refuse to sell it to you on the basis of your race, religion, or (in Colorado) your sexual orientation. Home Depot can’t refuse to sell you building supplies that you’re able and willing to pay for, whether you plan to build an orphanage, a gay club, or a Satanic temple.
Phillips was perfectly willing to sell the gay couple a cake. Colorado laws protecting gay rights compelled it. They could have a birthday cake, a Halloween cake, and any undecorated cake in his freezer. What he specifically refused to sell them was a wedding cake. And his argument was that, as an artist, any cake that he created was an act of expression, and he could not be compelled to provide expression in support of same-sex marriage, even in the name of gay rights.
On this point, there’s a great deal of debate. Can you compel a singer to sing at your bar mitzvah if you can come up with her usual fee to do so? Or an architectural firm to design a new sanctuary for the Westboro Baptist church? Can you compel a couturier to design clothes for anyone with the wealth to buy them?
Soup for him, but none for you
Political beliefs don’t protect you from discrimination. You can be kicked out of a bar for wearing a MAGA cap. Clothing designers don’t have to design clothes for Melania Trump. You can’t be forced to cater a Klan reception or a party for the DNC. Trump voters, Democrats, and the Klan aren’t protected classes. Race, sex, mature age, physical and mental handicaps and religion are.
So, in a few states like Colorado, is sexual orientation.
Does that mean Walmart can turn away Democrats and gays at the door? At the very least, that would be poor business practice. Most people would probably find that offensive, and many would argue that it should be illegal.
A more solid argument might be that Melania Trump should be able to buy any prêt-à-porter dress she likes, even one designed by a designer who hates her. Sophie Theallet’s may not be a public accommodation, but Nordstrom is, and if Melania wants to buy a Theallet dress of the rack there, Theallet can’t stop her. She can, however, refuse to use her creative talent, however modest, to dress Trump.
In like fashion, Beyoncé can’t stop you from buying her CDs and iTunes downloads, but she doesn’t have to come to your bar mitzvah. In fact, she can choose to sing only at all-black, all-white, all-gay, or all-Westboro Baptist venues and decline all others.
It’s a pretty cake, but is it art?
Political, religious and artistic speech are all protected under the Constitution. The Supreme Court could have ruled on that issue, finding that Phillips’ creations were protected as an artistic or religious expression. It might have ruled that they are not any kind of speech at all.
That would have opened up new problems either way. When the Court found that pornography wasn’t protected speech, it left it to communities to set their own standards. Justice Potter Stewart remarked that he couldn’t define pornography, but he knew it when he saw it.
That left the definition of pornography to different communities. In a vast, diverse and pluralistic nation, that meant that one community’s artistic nudes were another community’s dirty pictures. It meant that standards would change over time, and they wouldn’t be everywhere constant.
It would be childish to demand otherwise, yet on gay rights and wedding cakes, people want a set, simple answer, one in which their beliefs shut down competing beliefs. Is it art? Is it protected expression? We know art when we see it, but we don’t all see it the same way.
Facing an ugly and complicated question, the Court ruled on a technicality. The Colorado Civil Rights Commission was hostile to Phillips’ religious beliefs, refusing even to consider them. They should have treated him with more respect, accepting that his beliefs were real and that religious expression is protected, then ruling that the civil rights issue trumped Phillips’ religious beliefs. They didn’t.
The Court’s ruling is reasonable, at least reasonable enough to bring two of its liberals and Justice Kennedy, a swing vote, on board. But it clearly is a punt. Liberals fear that it is a ploy by conservative justices who hope that there will soon be another conservative vote on the Court when the issue comes back. Or the justices may simply have hoped to pass off a headache to someone else.
Only one thing is certain: This issue will be back.
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