An Exhortation

As always, do not form any strong opinions about the decision without reading it yourself. Here it is. Read it. Do not listen to me or anyone else when it comes to analyzing the decision. We all have biases, including the U.S. Supreme Court and the Colorado Civil Rights Commission. Especially the Colorado Civil Rights Commission, as the US Supreme Court demonstrates in this case.

The Players

Charlie Craig and Dave Mullins, a same-sex couple, went into Jack Phillips’ bakery, The Masterpiece Cakeshop, and asked for a wedding cake for their same-sex ceremony. Jack declined to make the wedding cake because it went against his genuine religious beliefs. Jack had served the couple numerous times before by selling them regular cakes, cookies and the like. Craig and Mullins filed a complaint with the Colorado Civil Rights Commission, claiming Phillips had violated the Colorado Anti-Discrimination Act by refusing to make them a wedding cake. The CCRC agreed with the plaintiffs, as did the Colorado Court of Appeals. The Colorado Supreme Court refused to hear it. But the United States Supreme Court heard it.

The Bottom Line

What does the 7-2 United States Supreme Court decision1 mean for the future of religious freedom, anti-discrimination laws, and the freedom of association?

Very little.

Very, very little.

In football terms, the SCOTUS punted.

As has been pointed out a bazillion times, the ruling is very narrow 2. The Court did not say that the Colorado Anti-Discrimination Act 3 required Jack Phillips had to bake the wedding cake for the same sex couple of Charlie Craig and Dave Mullins. Nor did the Court say Jack Phillips did not have to bake the cake them.

One might see how neither ideological side is all that excited.

Kennedy wrote:

“The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State4 and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek. The second is the right of all persons to exercise fundamental freedoms under the First Amendment.” 5

Despite saying the case “presents difficult questions as to the proper reconciliation of at least two principles,” the SCOTUS did not bother to actually reconcile them.

So what did they do?

Instead of ruling on that issue, the Court spanked the Colorado Civil Rights Commission 6 for its hostility toward Phillips’ religious beliefs. According to the Court, one commissioner’s statements were particularyly noteworthy.7

The Court criticized the Commission thusly:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.8

The Court wrote that “[t]he official expressions of hostility to religion in some of the commissioners’ comments . . . were inconsistent with what the Free Exercise Clause requires.” 9

“In view of these factors the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phillips’ religious beliefs.” 10

The Court declared that it “now must decide whether the Commission’s order violated the Constitution.”11  The CCRC did, but not in the way most of us anticipated.

The official punt:

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open Market.” 12

Nothing is over until we say it is  

I do not see anything keeping the same plaintiffs from going back to Masterpiece Cakeshop  and starting this entire process over again.

The CCRC might be just as biased against religion, but next time they know to shut up about it.

Some important historical context

I think it is important to note that there is no systemic or institutionalized denial of wedding cakes to gay couples. This is not about a black man trying to get a hotel room in 1964 Atlanta13. If Craig and Mullins, the plaintiffs’ goal was to get a wedding cake, they could have achieved that easily by walking across the street to a different baker. It makes more sense that their goal was to force Phillips, specifically, to make them a cake so they could set a legal precedent. They wanted to assert their authority over him. They wanted him to be compelled to act as they wanted. They did not just want a cake.

What is the real issue?

There is not a real problem presented by this case. The couple’s ostensible goal was to get a wedding cake. They could get one, just not from this baker.

I understand no one likes to be told someone won’t do something for them. Nevertheless, compelling someone specific to do something for you with the threat of government guns when someone across the street will do the same is not progress. It is regress.

Society has solved this problem. The market has provided a solution.

Let’s recognize this and celebrate it, not try to punish an individual, who, for whatever reason, doesn’t want to do something. Let someone else do it.

There is no clash of rights. It is not gay rights versus religious rights. One never has a “right” to compel someone to do something against their will. This misunderstanding of the concept is an epidemic. Not only is there no right to do it, we can be thankful that in 2018 Denver there is no NEED to do it. Craig and Mullins can easily get their cake. The market provides it for them. The government does not need to.

Wider application

The Act, by its terms, is limited. It specifically excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes.” 14

Therefore, no one could use the Act to make an Evangelical Christian Church host a same sex wedding reception.

The Court says

“When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion.” 15

The “stigma” thing

The Court continues “Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma.”

You know what is more likely? Those persons discriminating would be the ones feeling the stigma of being discriminatory.

There is a societal correction that does not need government guns. Indeed, voluntary ostracization is superior to government force. Voluntary transactions are superior to forced ones. Real progress is working toward changing minds, not forcing compliance with state-approved standards.

The Court went on to say that a sign in a story proclaiming that “‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.” 16

No, it would stigmatize the shop owners and they would lose business. And that is the way things should work.

State ordered reeducation

“Available remedies [under the Act] include, among other things, orders to cease-and-desist a discriminatory policy,” 17 This means that if one, even in good conscience due to a sincerely held religious belief, does not comply with the cease-and-desist order, one is subject to being held in contempt. Contempt orders are ultimately enforced by armed agents of the state who may kill you for noncompliance. See Garner, Eric. 18

In case you are interested, “Colorado law does not permit the Commission to assess money damages or fines.” Id. 19

The commission “also ordered additional remedial measures, including ‘comprehensive staff training on the Public Accommodations section’ of CADA ‘and changes to any and all company policies to comply with . . . this Order. 20 Such training is akin to perhaps a more friendly version of a Soviet style Reeducation Camp. In the Soviet Union, they were less colloquially referred to as the Gulag.

Real progressivism is not clinging to 50 year old policy

Let us grant, arguendo, that the use of government force authorized by the Civil Rights Act of 1964 was completely warranted and necessary for the United States to progress. Well, we have progressed. The next step in the progression is doing away with that government force and voluntarily changing minds, not forcibly changing behavior with government power.

Who can argue that a voluntary act is not superior to a compelled one? Voluntary acts should be the goal by which we measure our progress.

 

  1. The decision was written by Kennedy, joined by Roberts, Breyer, Alito, Kagan and Gorsuch. Ginsburg wrote a dissent, joined by Sotomayor.
  2. “Narrow” means limited in its application. It does not mean the court was closely divided, like it was a 5-4 decision. There was much confusion about this on the internet. But, hey, it is the internet. It is what we expect.
  3. Which, In pertinent part, says

    “It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability,race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”

    Colo. Rev. Stat. §24–34–601(2)(a) (2017).

  4. I want to express my gratitude for the proper use of “authority of the State.” Too often someone will say the “right of the State.” State’s have no rights. States have authority.
  5. Slip Op. at 1-2.
  6. The CCRC found against Phillps, the Court of Appeals affirmed, and thet Colorado Supreme Court refused to hear the case. Then US Sup Court agreed to hear it.
  7. The commissioner stated:

    “I would also like to reiterate what we said in the hearing or the last meeting. 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.” 

  8. Id., at 13-14.
  9. Id. at 18
  10. Id. At 17
  11. Slip Op. at 1
  12. Id. at 18, (emphasis added)
  13. See Heart of Atlanta Motel v United States  https://supreme.justia.com/cases/federal/us/379/241/case.html .
  14. Id at 5.
  15. Id. at 10.
  16. Id. at 12.
  17. Id. at 6.
  18. https://en.wikipedia.org/wiki/Death_of_Eric_Garner
  19. Unlike Washington, where a baker was fined a bunch of money for refusing to make a wedding cake for a gay wedding. https://www.statesmanjournal.com/story/news/2017/12/28/oregon-court-upholds-135-000-fine-portion-ruling-against-bakery-owners-gay-wedding-cake-case/985096001/
  20. Id. at 8.