Masterpiece Cakeshop is a win, and conservatives are justifiably excited. Jack Phillips, an expert baker and devout Christian, was not required to create a wedding cake for a gay marriage. In a stunning about-face, Justice Kennedy seemingly struck a blow to the gay-rights agenda. Sen. Ted Cruz, a careful Constitutional lawyer by trade, tweeted:
Today’s Supreme Court decision upholding a Colorado baker’s constitutional right to live according to his faith is a major victory for religious liberty. The fact that the decision was 7–2 (not a narrow 5–4) underscores that govt should NEVER discriminate against religious faith.
But while the Court reached the right outcome, its reasoning leaves much to be desired. Masterpiece is merely a precursor of the battles to come.
There’s an old saying among jurists that anything but a 5–4 decision means one side has left something on the table. This case exemplifies that lesson. Justice Kennedy’s opinion is on exceedingly narrow grounds; so narrow that the case is properly characterized as “fact-bound.” That’s legalese for a ruling that has little precedential value for deciding future cases because the ruling is so closely tied to the specific circumstances of the case that it likely will never be repeated. Understanding this limitation requires taking a careful look at what the Court actually did.
The Colorado Anti-Discrimination Act (CADA) prohibits discrimination in places of public accommodation. Such laws prevent places of business, like Masterpiece Cakeshop, from refusing to serve protected categories of people, including homosexuals. The law also created the Colorado Civil Rights Commission, which investigates claims of discrimination and decides whether to initiate formal proceedings.
The Court has previously held that “valid and neutral laws of general applicability” do not violate the Free Exercise Clause because they are not intended to burden religion. Thus, CADA itself was not at issue, only its application.
When Phillips refused to bake a cake, the gay couple raised a complaint and the Commission initiated a proceeding. Then, during that proceeding, one member made the following statement:
Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—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—to use their religion to hurt others.
The blatant disparagement of religion expressed in those lines violated the Commission’s “solemn responsibility of fair and neutral enforcement” of the anti-discrimination law. And that’s the entire ruling: Because one member of the Commission accidentally vented his anti-religious ire, that specific decision is invalid.
Masterpiece did not change the law. There is no difference in the applicable legal standard governing such situations. Free Exercise is no more secure than before. The Court refused to protect Phillips’s expressive conduct on free speech grounds. And bear in mind that the facts of this case occurred before either Windsor or Obergefell were decided. In other words, if this case were to be repeated with identical circumstances minus one commissioner’s imprudent statement, there is no guarantee the Court would protect the baker’s religious beliefs.
Commentators like National Review’s David French have nevertheless made grandiose claims such as the following:
It is no small irony that the same justice who just struck a blow for the dignity of the faithful is also the man most responsible for creating the constitutional right to same-sex marriage.
But such claims stem from a fundamental misunderstanding of what the Court in fact did. This was not a blow struck for religious liberty; it was a lucky slip from an overconfident opponent’s ill-judged haymaker.
The Court has, of course, put us on this collision course — between the values of freedom of religion and free speech, principles at the core of this nation, and the “new justice” of the dignitary rights that must be afforded to every “protected class.” While some language in the opinion weakly suggests that discrimination based on religious grounds might be permissible, it does not protect religious freedom in the meaningful way necessary for republican government. Worse, Justice Kagan’s concurrence basically wrote a rule book for future commissioners to avoid this type of challenge.
In short, it is unclear how far the ruling will go. In totally passing on the free speech claim, the court passed on broad and enduring protection. Only Justices Thomas and Gorsuch argued Philip’s baking is protected expressive conduct. This means that when push comes to shove (and it will), the Court’s future course is unpredictable.
We might wish we had a Free Exercise Clause that did in fact protect the exercise of sincerely held religious beliefs beyond the four walls of the sanctuary, and guarantee our constitutional right to follow God’s commandments publicly as well as privately. But this opinion does little to advance any of that. Masterpiece provides no reassurances to those citizens who simply wish to be left alone to live out morally serious lives as good and productive citizens, enjoying the “benign influence of the good laws under a free government.”
This case may have been decided by a wide margin, but liberty still hangs in the balance by a thread.
Zachary Reynolds is a student at the University of Chicago Law School and a graduate of the Van Andel Graduate School of Statesmanship at Hillsdale College.
