Though Masterpiece is a decision upholding religious liberty, the Supreme Court’s ruling makes it clear that free speech about homosexuality does not enjoy broad protections…
In the first of two momentous cases on its docket as to whether some Americans can be left alone as dissenters from the punishing orthodoxies of the progressive society and state, on Monday of this week the Supreme Court in the Masterpiece Cakeshop case allowed the owner of a single bakery, who regularly served homosexual customers, to refuse to bake a cake for and therefore participate in a gay wedding. The state of Colorado through its Civil Rights Commission and courts had ordered the baker, Jack Phillips, to cease baking wedding cakes completely if he continued to refuse to bake cakes for gay weddings. In the other case, Becerra, which will be decided soon, private pro-life centers are fighting the attempt of the state of California to require them to make referrals for abortion.
It was predicted that the case would be close and that Justice Anthony Kennedy, author of the Court’s two gay rights decisions in addition to its two gay marriage decisions, would be the deciding vote and the author of the opinion. As it turned out, he authored the opinion but was joined by all the justices except Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Justice Kennedy opens the analytical part of the opinion with a thoroughgoing affirmation of the Court’s gay rights decisions and broadens the results of those judicial edicts to include society itself. “Our Society has come to the recognition that gay person and gay couples cannot be treated as social outcasts of as inferior in dignity and worth.” He then goes on to refer to his own opinion in the gay marriage case, Obergefell (2015) by stating that “religious and philosophical objections to gay marriage are protected views,” but those objections are “protected forms of expression” only “in some instances.” Thus, it is an immediate tip-off that free speech about homosexuality does not enjoy broad protections and, in addition, it is a tip-off that the Masterpiece decision will not be about the issue that completely dominated the arguments of the parties and in all briefs filed in the Court: free speech.
Justice Kennedy goes into a detailed account of how the Colorado Civil Rights Commission and the Colorado appeals court handled the case. And he concludes that Mr. Philips was subjected to “a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.” At a public hearing, one commissioner told Mr. Phillips that he could not “act on his religious beliefs ‘if he decides to do business in the state.’” At a later meeting, another commissioner said that
I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion have been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust,… we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to use their religion to hurt others.
Justice Kennedy pointed out that no commissioner nor the body itself nor the Colorado courts of appeals disavowed or criticized that kind of language.
In his brief to the Court, Mr. Phillips described the disparate treatment he had received at the hands of the Commission and the Colorado court. In three other cases, the Commission had upheld the right of a baker to refuse to bake a case with “images that contained disapproval of same-sex marriage, along with religious text.” Justice Kennedy concluded that the Commission’s consideration of Mr. Phillips’ religious objection did not accord with its treatment of those other three cases. In conclusion, seven members of the Supreme Court found that the state of Colorado had denied Mr. Phillips the free exercise of religion and violated its “duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”
Considering Justice Kennedy’s opinion as a whole, his meticulous recitation of the facts about the on-the-record animus against religion experienced by Mr. Phillips goes well beyond even what Mr. Phillips’ attorneys had argued in their brief and stands out as the real basis for the decision. And it led to the invocation of the unanimous decision of the Court in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) as the constitutional basis for the decision. Lukumi, a case in which Justice Kennedy wrote the majority opinion, involved the Santeria religion which engages in animal sacrifice in its rituals. The city of Hialeah, Florida, had enacted a series of ordinances concerning animal sacrifices, including defining “sacrifice” as the unnecessary killing of an animal in a ritual and expressing citizens’ “concerns” over religious practices opposed to public morals, peace, and safety. “The ordinances had as their object the suppression of religion,” the Court held, and further held that “the only conduct subject” to the ordinances was “the religious exercise of Santeria church members.” As such, the ordinances, even though written in “neutral and generally applicable language,” had the purpose of and did violate the free exercise of the Santeria religion.
The Supreme Court’s decision in Lukumi is significant beyond the area of religious liberty. It stands out in general constitutional jurisprudence as a case based not on the “plain meaning” of the legislation—in Lukumi, the local ordinances—whose meaning is at issue, but on the motives for the enactment of the legislation. As Justice Antonin Scalia cautioned in his opinion concurring in the result in Lukumi, it was not necessary to scrutinize “the subjective motivation of the lawmakers” because the ordinances had “the effect” of burdening religious liberty. And in Masterpiece, Justice Kennedy acknowledges disagreements about “whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion.” It can be noted that Lukumi has been cited in lawsuits alleging that President Trump”s “real motive” in his executive orders banning travel from certain countries is his bias against Muslims.
However, Justice Kennedy makes an incisive—and very alarming in its implications—distinction in Masterpiece. In Lukumi, the issue was the background and motivations for legislation. “In this case,” Justice Kennedy concludes, “the remarks were made in a very different context—by an adjudicatory body deciding a particular case.” And this distinction only heightens the gravity of what befell Mr. Phillips. It was one court-like body, the Commission, and an actual court, the Colorado court of appeals, that acted with “clear and impermissible hostility toward the sincere religious beliefs” of Mr. Phillips.
Again, Justice Kennedy, speaking for the seven-person majority, made no ruling about the free speech rights of Mr. Phillips. The briefs in the Court of both Mr. Phillips and Colorado, as well as of the almost seventy amici briefs filed in the case, had all emphasized free speech and its several variations: baking a cake as free speech, artistry as free speech, compelled speech, religious speech and commercial speech. The Trump Administration’s Department of Justice had filed a brief in support of Mr. Phillips that concentrated solely on freedom of expression, while essentially ignoring freedom of religion. In his concurrence, Justice Clarence Thomas, for himself and Justice Neil Gorsuch, argued that Mr. Phillips’ free speech rights had also been violated.
So, today there are some members of the Colorado Civil Rights Commission who wish that they did not have such big mouths. Without their open and venomous denunciations of religion, the decision, by the language of the majority opinion described above, could—or would—have gone the other way. Justice Elena Kagan for herself and Justice Stephen Breyer in concurrence and Justice Ginsburg for herself and Justice Sotomayor in dissent went out of their way to quote and emphasize Justice Kennedy’s opening words that although “religious and philosophical objections” to, for instance, gay marriage are “protected,” the “general rule” is that “such objections do not allow business-owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” That is a majority.
However, Masterpiece is a decision upholding religious liberty. And it is the fifth such decision in a row for the Court, including Hosanna Tabor (2012) and Hobby Lobby (2014), and Trinity Lutheran (2017). The Court has established itself as a brake on the march of cultural progressivism against religion. In our society, religion is the last refuge of dissent from the power and wealth of the homosexual campaign as buttressed and sustained by the media, academia, public education, tech corporations, and by some state governments.
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