Since the rise of the gay-marriage movement, it has become fashionable to decry dissenters as haters and bigots, to attempt to write them out of polite society in the same way that the larger American body politic has rightfully rejected the Klan. Politicians thunder against Christian bigots. Media organizations put the words “religious liberty” in scare quotes, as if the expression of deeply held religious beliefs is a mere pretext, used to conceal darker motivations. And ideologues in state agencies give full vent to their rage, mocking faithful Christians as if they stand in the shoes of slavers and murderers.
Today, the Supreme Court said, “enough.” Today, the Court breathed a bit of life back into religious-liberty jurisprudence. And the justice who did it is none other than Anthony Kennedy, the architect of the Obergefell opinion and the justice most responsible for the gay-rights revolution.
Here’s how he did it. Jack Phillips, owner of Masterpiece Cakeshop, raised two constitutional defenses to Colorado’s charge that he unlawfully discriminated against a gay couple when he refused to custom-design a cake for their same-sex wedding. He first argued that creating a custom cake constituted an act of protected expression under the First Amendment, and he could not be compelled to exercise that expression to support a same-sex wedding.
The Lord works in mysterious ways, and 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.
The Court essentially punted on the question, noting that it raised complex and difficult issues. To the extent that the dicta provides any guidance going forward, it seems that the greater the obvious expressive content, the greater the constitutional protection. In other words, a cake that contains words or symbols might enjoy greater protection than a cake with no obvious expressive meaning. But that’s speculation. The case wasn’t decided on that basis.
Instead, the Court focused on Phillips’s second claim, holding (by a 7–2 margin) that Colorado violated his right to free exercise of religion when it held him in violation of state public-accommodation law. Justice Kennedy focused on two critical aspects of the case to support his ruling. He first condemned anti-religious comments made by state commissioners during the hearings before the Colorado Civil Rights Commission. He especially singled out a commissioner’s claim that “freedom of religion” has been used to “justify all kinds of discrimination throughout history,” including slavery and the Holocaust. The commissioner called Phillips’s religious-freedom claim “one of the most despicable pieces of rhetoric that people can use.”
Kennedy’s response was devastating:
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. . . . This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation.
Kennedy could have stopped his opinion right there. As he notes, there was no objection to those comments from other commissioners, and they weren’t disavowed at any time during the proceedings. One of the actual adjudicators of the case was expressing outright hostility to Phillips’s religious expression, a situation different from and more egregious than lawmakers’ expressing hostility to religious faith when passing legislation.
Had Kennedy stopped his opinion at that point, Phillips’s victory would have been important, but profoundly limited. The obvious response would be for the commissioners to reconsider the case, cleanse their rhetoric of outright hostility, deliver the same result on a cleaner record, and put the more difficult free-speech claim right back in the Court’s lap. But Kennedy didn’t stop. He found a separate ground for concluding that Colorado was motivated by anti-religious animus, and that separate ground will make it difficult for states to take aim at “offensive” religious exercise, even when it occurs in a commercial context.
It turns out that the state of Colorado had protected the right of bakers to refuse to create cakes with explicitly anti-gay messages. Here’s Kennedy again:
On at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included “wording and images [the baker] deemed derogatory.”
But wait. Can the state make those distinctions? Can it protect the right of one baker to refuse an “offensive” message without extending protection on an equal basis to other bakers? Kennedy’s words are key:
A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. . . . The Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.
Let’s put it differently. All bakers — regardless of religion — have the same rights and obligations. At the same time, gay and religious customers enjoy equal rights under state public-accommodation statutes. Any ruling the commission imposes will have to apply on the same basis to different litigants, regardless of faith and regardless of the subjective “offensiveness” of the message.
This is a severe blow to the state. It hoped for a ruling declaring that the cake wasn’t protected expression and a free-exercise analysis that simply ratified the public-accommodation law as a “neutral law of general applicability.” Such a ruling would have permitted the favoritism on display in this case. It would have granted state authorities broad discretion to elevate favored messages and suppress dissent, all while operating under the fiction that they weren’t suppressing protected expression or religious exercise.
Instead, civil-rights commissions now have to understand that restrictions on religious bakers will carry with them the same implied restrictions on secular bakers, and the protections given gay customers will extend on an equal basis to religious customers. In other words, the Court not only prohibited favoritism, it imposed a high cost on censorship.
No, the Court did not issue the sweeping free-speech ruling that many advocates hoped for and others feared. Instead it issued a ruling that reminded state authorities that people of faith have the exact same rights — and are entitled to the exact same treatment — as people of different faith or no faith at all. And it did so in an opinion that decisively rejected the exact talking points so favored by the anti-religious left.
The Lord works in mysterious ways, and 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. State bullies beware, when Justice Kennedy declared in Obergefell that the First Amendment still protects religious people as they seek to teach and uphold those “principles that are so fulfilling and so central to their lives and faiths,” he meant what he said. Tolerance, it appears, is not a one-way street.