[N]o bureaucratic judgment condemning a sincerely held religious belief as “irrational” or “offensive” will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise.
—Justice Neil Gorsuch
As if I didn’t write a long enough post on Monday about the Masterpiece Cakeshop ruling, I thought I’d add some more.
On Monday we dealt mostly with Kennedy’s majority opinion. But there were actually four concurring opinions: Kennedy’s (joined by all but Ginsburg and Sotomayor), Kagan (joined by Breyer), Gorsuch (joined by Alito), and Thomas (joined by Gorsuch). Plus, of course, there was the dissenting opinion.
|Justices ruling on Masterpiece Cakeshop v. Colorado Civil Rights Commission, |
image from SCOTUSblog
There’s something of an argument going on between Justice Kagan and Justice Gorsuch. The SCOTUS world isn’t like much of anything else we have. These two differing people don’t sit in a room and discuss or debate one another. They ask different questions during oral arguments, which reveals something of what they’re thinking. But it isn’t until the written opinions that you see them challenging the opinions of others.
Justice Kagan agrees that the Colorado Civil Rights Commission was wrong in their anti-religious approach to the baker. But their tone, and approach, is pretty much all she finds wrong.
There’s a comparison in this case with the Jack case—a man who requested a cake with an anti-same-sex marriage message written on it, including a Bible verse, and was turned away by three bakers, in which case the CCRC ruled that the bakers did not have to create a cake with a message against their beliefs. Kagan says the difference is that they would not have made such a cake for any customer. But she claims Phillips, the owner of Masterpiece Cakeshop, does make wedding cakes for anyone but same-sex customers.
Justice Kagan writes,
The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious belief.
There’s a long footnote comment at that point (I’ve left out the citations):
|image from Amazon.com|
JUSTICE GORSUCH disagrees. In his view, the Jack cases and the Phillips case must be treated the same because the bakers in all those cases “would not sell the requested cakes to anyone.” That description perfectly fits the Jack cases—and explains why the bakers there did not engage in unlawful discrimination. But it is a surprising characterization of the Phillips case, given that Phillips routinely sells wedding cakes to opposite-sex couples. JUSTICE GORSUCH can make the claim only because he does not think a “wedding cake” is the relevant product. As JUSTICE GORSUCH sees it, the product that Phillips refused to sell here—and would refuse to sell to anyone—was a “cake celebrating same-sex marriage.” But that is wrong. The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike.
Let me clarify here, to help out Justice Kagan. A marriage—and the ceremony and celebration surrounding it, called a wedding—is a particular thing. It has been that particular thing for thousands of years. The particular thing that is defined as marriage is a contract between a man and a woman indicating that their union is permanent, includes the human reproductive behavior that can lead to offspring, and in most cultures is exclusive. They make the contract before the community—by way of church and law most usually—thereby allowing the community to expect from them the social benefits that marriage provides.
A ruling by five justices, legalizing same-sex marriage by fiat, does not change the definition of actual marriage; it cannot. The power to do so was never granted to those judges by the people, nor by their law, the Constitution. Nor could a majority of people voting to make it so among a particular people change the definition of what marriage actually is.
Add to that the belief that the original definition of marriage was ordained by God, and to the believer the very attempt to change it becomes immoral.
As Justice Thomas says in his concurring opinion:
Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids.
To clarify further, it is not homophobic, bigoted, or otherwise evil to believe in the real meaning of marriage. There is nothing inherently anti-homosexual about that. Homosexuals have always been allowed to marry a person of the opposite sex, who is not married to someone else, who is not a close relative—just like heterosexuals. It’s just that they are now expecting all cultures the world over to throw out real marriage and redefine it as something akin to “in a current sexual relationship with a person of my choosing.” And then they choose someone to whom they cannot, by definition, marry.
For someone who made a covenant to a spouse and is living that out decade after decade, to be told my covenant is now transformed into nothing more than an announcement of who I’m currently choosing to hook up with—that is utterly disrespectful. Yet you’re not getting gay-hate parades. You’re not getting gay persecutions. You’re getting quiet business owners who simply want to go about their businesses while living their religions—and they’re being persecuted and prosecuted for it.
In the end, we know the meek will inherit the earth. In the meantime, if we’re truth seekers, we should seek justice for not just one baker, but for all the other marriage-honoring people who are being persecuted.
So, back to this case. Justice Gorsuch is correct: a “cake celebrating same-sex marriage” is not the same as a “wedding cake.” They have the same ingredients, but not the same intent.
The same-sex couple would have been free to purchase a generic wedding cake, already produced by the baker (or, rather, whatever was available on the day they wanted it), and they could take it and use it for whatever purpose they chose, without ever burdening the baker with knowledge or responsibility for how the confection would be used.
But that is not what they asked. They asked for a custom designed and produced cake for their same-sex “wedding” celebration. Phillips told them he does not design and create cakes for such an event. He was asked by the mother of one of the couple, and he would not sell such a service to her either, even though she was heterosexual. It wasn’t about the sexual orientation of the customers—whom he was willing to serve with any of his other products. It was about his unwillingness to use his God-given talents to celebrate an event that, in his view, is not a real wedding, and further is offensive to God.
Kagan’s view can only be correct if a same-sex “marriage” is self-evidently exactly equal to an actual marriage. At the time of the dispute, not even the state of Colorado saw it that way.
During the oral arguments during Obergefell, Justice Kennedy was fully aware of the danger to religious people, who would not change their beliefs simply because a ruling made a legal path open to a certain group of people. And he seemed to at least give lip service to the importance of protecting religious liberty.
And to be fair, the Court has ruled unanimously several times in recent years to protect religious liberty. It’s just that there’s always this rather arbitrary “unless the government has a compelling interest” threat hanging overhead. In this case, fortunately, we still have 7 of the 9 justices willing to recognize the need to support religious freedom, although the reasons of at least 3 of them feel rather tentative, more like “don’t be overtly anti-religious.”
In the absence of Justice Scalia, I’m happy that we have yet another justice who is not just clear, but enjoyable to read. There’s this section of Justice Gorsuch’s concurring opinion in which he uses a Goldilocks metaphor in referring to the changing standards used by the Colorado Commission:
|Goldilocks, image from here|
At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right. The problem is, the Commission didn’t play with the level of generality in Mr. Jack’s case in this way. It didn’t declare, for example, that because the cakes Mr. Jack requested were just cakes about weddings generally, and all such cakes were the same, the bakers had to produce them. Instead, the Commission accepted the bakers’ view that the specific cakes Mr. Jack requested conveyed a message offensive to their convictions and allowed them to refuse service. Having done that there, it must do the same here.
Any other conclusion would invite civil authorities to gerrymander their inquiries based on the parties they prefer. Why calibrate the level of generality in Mr. Phillips’s case at “wedding cakes” exactly—and not at, say, “cakes” more generally or “cakes that convey a message regarding same-sex marriage” more specifically? If “cakes” were the relevant level of generality, the Commission would have to order the bakers to make Mr. Jack’s requested cakes just as it ordered Mr. Phillips to make the requested cake in his case. Conversely, if “cakes that convey a message regarding same-sex marriage” were the relevant level of generality, the Commission would have to respect Mr. Phillips’s refusal to make the requested cake just as it respected the bakers’ refusal to make the cakes Mr. Jack requested. In short, when the same level of generality is applied to both cases, it is no surprise that the bakers have to be treated the same. Only by adjusting the dials just right—fine-tuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views—can you engineer the Commission’s outcome, handing a win to Mr. Jack’s bakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is improper.
Justice Thomas ends his concurring opinion with a reminder that he told us so:
In Obergefell, I warned that the Court’s decision would “inevitabl[y]… come into conflict” with religious liberty, “as individuals… are confronted with demands to participate in and endorse civil marriages between same-sex couples.” This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy” [Alito]. If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.
The battle is being waged. I hope the meekly religious can hang on until it’s time to inherit the earth.