The word of the day, according to the media, is “narrow.” Describing the Supreme Court’s 7–2 holding that the state of Colorado violated baker Jack Phillips’s right to free exercise of religion by ruling that he violated the state’s public-accommodation law when he refused to bake a custom cake for a gay wedding, the New York Times said that the majority “relied on narrow grounds.” CNN legal analyst Steve Vladeck called the decision “remarkably narrow.” NPR’s Nina Totenberg wrote a story headlined, “In Narrow Decision, Supreme Court Decides In Favor Of Baker Over Same-Sex Couple.”
While we believe that the court should have issued a broader ruling, one holding that baking a custom wedding cake is protected expression under the free-speech clause of the First Amendment, its actual ruling is significant. It can potentially shift the language surrounding America’s religious-liberty debate and increase the cost of state favoritism and double standards. In other words, it isn’t nearly as “narrow” as legal progressives would have you believe.
In a nutshell, the Court ruled that the state of Colorado violated Jack Phillips’s free-exercise rights in two specific ways. First, the Court singled out examples of obvious anti-religious animus to show that Phillips did not receive a fair hearing from the Colorado Civil Rights Commission. Most egregiously, one commissioner compared Phillips’s principled refusal to custom-design a cake for a gay wedding to religious arguments for slavery or the Holocaust. Writing for the majority, Justice Kennedy rightly declared the statement “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.”
While the Court could have ruled against Colorado based solely on the commissioners’ expressed anti-religious animus (a ruling that truly would have been narrow), it went further. Justice Kennedy also noted the existence of a rather profound double standard. It turns out that even as Colorado punished Jack Phillips for refusing to design a cake for a gay wedding, it had protected the right of bakers to refuse to create cakes with anti-gay messages. In other words, the existence of obvious favoritism was itself evidence of anti-religious animus.
Skeptics will note that there is an obvious path through the Supreme Court’s ruling. If a state merely makes sure that its civil-rights commissioners don’t exhibit bias — and if it remains consistent in its rulings — then it can put the underlying free-speech issue right back before the Court. And the outcome of that debate is far from certain.
Yes, that is certainly possible, but as a practical matter, it is easier said than done. Are states really willing to tell gay bakers they have to create cakes with anti-gay messages for the sake of trying to shut down the very few Christians and other religious traditionalists who hold dissenting views? Is there a crop of cases that are free of anti-religious bias and free of double standards, just waiting for Court review?
The Court may well have to address the underlying free-speech issues at a future date, but until then it has issued a ruling that doesn’t just help achieve justice in Phillips’s individual case, it can perhaps help reset the terms of the religious-liberty debate. It’s fashionable for progressive critics to condemn conservative religious-liberty claims as mere pretext for bigotry. Indeed, that was the view of relevant decisionmakers in Phillips’s case. One of the commissioners described his religious-liberty claim as a “despicable piece of rhetoric.”
Justice Kennedy — the judicial father of gay marriage — responded with words that should echo in the public debate:
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.
Yet is that not exactly what critics of orthodox religious believers do every day? While there is little doubt that radical academics and pundits will continue to act in bad faith, their counterparts in the state and local governments will now find that their hostility and double standards carry a cost. On that basis alone, Phillips’s victory is broad enough to earn our applause.