Law & the Courts

Masterpiece Cakeshop Is a Setback for Liberty

Baker Jack Phillips speaks with the media following oral arguments in the Masterpiece Cakeshop vs. Colorado Civil Rights Commission case at the Supreme Court in Washington, D.C., December 5, 2017. (Aaron P. Bernstein/Reuters)
This was a straightforward free-expression case, and the Court could have resolved the dispute in favor of liberty.

I must respectfully disagree with the editors regarding the Supreme Court’s ruling in Masterpiece Cakeshop.

Professor Steve Vladek is right: The decision is “remarkably narrow.” One cannot help but be struck by the majority’s reticence from the outset: “Whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause.” Mind you, this is from the pen of Anthony Kennedy, a judicial supremacist who ordinarily interrupts his liberty bender only to scold the People — formerly known as the sovereign — to pipe down and quit grousing once the Robed Nine have spoken.

On this one, though, Justice Kennedy assures the Left it can grouse away. This ruling, in grudging accommodation of religious conviction, will not necessarily bear on the outcome “of some future controversy involving facts similar to these.”

To be sure, I am all for a Lincolnian construction that reduces Supreme Court rulings to a duly narrow resolution of the dispute between the litigating parties, leaving it to the republic to govern itself accountably. But that is not what’s going on here. This case is a one-off. The justices, manifestly pained, side ever so ambiguously with religious liberty, a founding principle of the nation, over gay marriage, a trendy progressive cause that would not remotely have been threatened in Colorado had Jack Phillips been left in peace to honor his convictions.

Kennedy’s sweet-mystery-of-life jurisprudence is all about exploring the exotic contours of liberty to discover heretofore unknown substantive safeguards. Not in this case, though. Confronted by a liberty twofer — an attack on free-expression rights that also burdens religious liberty — the justices punt on substantive protections for traditional religious exercise and speech (the latter liberty that could and should have decided the case in Mr. Phillips’s favor); they agitate, instead, over procedural flaws in the state’s adjudication of the conscience question.

We don’t know how the next similar case will be decided (actually, I think I do know) because the 7–2 majority does not announce a rule of decision that will guide courts in applying the right to religious liberty. That’s why it was 7–2. In reality, with Kennedy writing and progressive justices Stephen Breyer and Elena Kagan joining, the outcome may have been 7–2, but the reasoning fluctuated between 5–4 and 4–5 depending on which sentence we’re talking about.

In essence, Phillips won because the oxymoronic Colorado Civil Rights Commission was mean to him. The Court does not say how the commission should have decided the matter; it merely admonishes that, in future hearings, the commissioners must avoid being so indecorous, so overt in their hostility to unreconstructed Christians. Silent, smiling contempt is de rigueur: In the next case, just patiently hear out the baker, politely rule against him, and move on — no more grandstanding about how much religion sucks.

Just to be clear, my Christian religious convictions are strong, but run mainly along the lines of recognizing my own failures to live up to the love and empathy they demand. I prefer a live-and-let-live approach, in which Jack Phillips gets to refuse to design cakes conveying messages that transgress his religious convictions; Charlie Craig and Dave Mullins then proceed to a nearby bakery whose owner is delighted to have their business and celebrate their union; the market decides whether and how to react to these choices; and we all move on to far more consequential matters like whether the Eagles get to visit the White House.

Unlike many conservatives, I remain persuaded by the wisdom of Justice Scalia’s reasoning in Employment Division v. Smith (1990). Concededly, this may be the bias of a lawyer who spent years prosecuting jihadist mass-murderers; but, it being hard enough for judges to get the law right, I don’t want them sorting out which exercises of belief are sufficiently central to the religious doctrine at issue to merit First Amendment protection — refusing to design a cake, good; peyote consumption as a sacrament, not good; flying jumbo jets into skyscrapers, really not good, etc.

I am therefore content to live in a system in which neutral laws (i.e., not espousing or motivated by hostility to religion) that are generally applicable to the public should be enforced. To be sure, such laws could and sometimes do portend unintended, incidental burdens on religious practice. To my mind, though, it would be better for the community to work out exemptions through the political and legislative processes than for judges to impose them. Regulation and legislation involve compromise, and enactments can be amended or repealed if problems arise or sensibilities change. When judges impose solutions under the guise of interpreting the First Amendment, there is more chance of getting it wrong and less chance of fixing it.

The freedom of speech clearly embraces Phillips’s right not to be compelled to engage in patently expressive conduct endorsing gay marriage.

Finally, speaking of the First Amendment, this was a straightforward free-expression case, as Justice Thomas (joined by Justice Gorsuch) explained in separate opinion concurring in the judgment. A wedding cake is an implicit expression of approbation, and in Phillips’s specific vocation, a form of artistic expression. As the Court recounted, the Colorado Civil Rights Commission has on at least three occasions protected bakers who — quite understandably, and I think admirably — refused to make cakes that abominated gay couples. That is, the commissioners recognized the palpable free-speech implications. Well, the First Amendment safeguards our right to refrain from expressing not only what the government condemns but what it endorses; indeed, it is the latter that cries out for First Amendment protection.

The freedom of speech clearly embraces Phillips’s right not to be compelled to engage in patently expressive conduct endorsing gay marriage. The state could easily recognize this right without disturbing its anti-discrimination act — even neutral laws of general application must accommodate protected speech.

The Court could have resolved the case that way. But it preferred the consensus appearance of a 7–2 vote to the faithful rendering of a 5–4 decision. With due respect to my editorial colleagues, I believe the justices’ obvious reluctance to defend liberty is a setback. The implication is plain: As long as the next “civil rights commission” is fashionably demure, the next Jack Phillips will lose.

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