When the Supreme Court announced its opinion on the Masterpiece Cakeshop “gay wedding cake” case, varying headlines throughout the media all seemed to contain the same keyword to describe the decision: “narrow.” In this article, I want to alert you as to why they are right, and why conservatives had better pay attention.
Conservatives across social media just as widely ridiculed the headlines: “That’s the first time I’ve ever heard a 7–2 decisions called ‘narrow’!” many said.
It is crucial to realize, however, that the description of “narrow” does not refer to the for/against numbers, but to the nature of the ruling. I say crucial because of what the decision will really mean for future cases.
The future is hardly won. This decision itself is only an individualized victory that hinges upon the particular clumsy mistakes made by the Colorado Civil Rights Commission. Given what this case really means, the adulation of conservatives and their general ridicule in social media points to a dangerous false sense of security.
A narrow place to stand for Christians
One report on SCOTUS’s own symposium blog after the decision caught my eye. It is misleadingly titled, “not as narrow as may first appear”—because while it does indicate what teeth the decision may actually have, if also shows how easily pro-LGBT agencies can evade them. Otherwise, this review is good in how candid and even-handed it is. It is peculiar in the right way: the amici involved state up front that they were on the side of the baker in this case, yet nevertheless in favor of homosexual marriage.
First, why is this decision truly “narrow”? Not, as already said, because of the count for-or-against, but because it relied on a slim grounds, and thus applies only in select circumstances. As the report, written by professors Laylock and Berg, explains,
What more obviously narrows the decision is that the Supreme Court based it on the state’s hostility to the baker’s religious faith. As evidence, the court pointed both to hostile comments from members of the Colorado Civil Rights Commission and to the commission’s inconsistent treatment of religious discrimination and sexual-orientation discrimination.
This boils down to the fact that the court made no ruling on any aspect of the case regarding Free Speech. It only ruled in such a way as to protect the religious liberty of the baker.
“Great!” you say. That’s what we wanted: to protect religious liberty. The court, however, only ruled the way it did because the Colorado Civil Rights Commission made overtly anti-religious statements. For example, “[O]ne commissioner blamed religion and religious freedom for slavery and the Holocaust and added that ‘it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.’” It also engaged overtly in double standards when handling cases of the opposite nature.
The Commission’s hostility is pretty much the only reason the baker won. As such, the brief dissent written by Ginsburg and joined by Sotomayor faulted the majority only on these points:
The different outcomes the Court features do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below. (p. 3.)
Guideline for persecuting Christian businesses: do it quietly
All of this means, therefore, that had the Commission been a little more guarded or savvy with its words, it could have been ruled as justified in the exact same actions. The dissent felt that even with the overt anti-religious speech that it already had expressed, the Commission had not crossed the line, largely because it was only a couple members. Had these actors not been so aggressively anti-religion, it is very likely the other justices would have ruled the other way as well.
In other words, what this ruling has really done is signal to all State actors: You may shut down conscientious Christians as long as you be careful not to use anti-religious comments in the process. The report previously mentioned makes this clear as well. On the surface, the opinion seems to state a pretty broad rule:
Even when a law has no explicit exceptions, hostile enforcement is unconstitutional. Single-issue agencies that enforce state civil-rights laws must approach claims to religious exemptions with tolerance and respect. And this is apparently an absolute rule; the court does not consider whether hostility might be justified by some state interest, compelling or otherwise.
In practice, however, discriminatory, pro-LGBT agents will not find this difficult to avoid:
[A] requirement of tolerance and respect, or even the avoidance of hostility, is difficult to enforce. The opponents of religious exemptions will now start doing the sorts of things done by many other government officials resisting constitutional mandates. They will seek doctrinal and rhetorical manipulations to cloak their hostility to the constitutional right, and their unequal treatment of objectors they agree with and objectors they don’t.
The concurring opinions that also expressed partial dissent revealed the door left open: “Kagan and Breyer said that the state’s discrimination could easily have been justified with a different explanation. . . .”
Finally, the review notes, “the Supreme Court has not been good over the years at identifying government bias or hostility that is the least bit shrouded. In a case without smoking-gun expressions of hostility, objectors will need evidence of inconsistent treatment of tester cases.”
In short, in the future, if there is no smoking-gun evidence of anti-religious hostility, state agencies like the Colorado Civil Rights Commission will get away with punishing Christian bakers and businesses—even with Masterpiece Cakeshop standing as it is.
Right back where we started
Given the nature of the opinion and of the partial dissents by Breyer and Kagan, we’re really right back where we started. Take away the overt anti-religious speech in this case, and it would have been a tossup 5–4 decision with Kennedy the swing vote—just as everyone predicted to begin with.
Kennedy himself remains ambiguous. Time reports,
Among the questions that remain unanswered: Does forcing a baker to make a cake for a same-sex wedding violate the baker’s rights to free speech? Is making a cake a form of speech? If another gay couple came into Masterpiece Cakeshop today and asked for a wedding cake, would Phillips be within his rights to refuse them? Experts say it remains unclear. “Whatever the outcome of some future controversy involving facts similar to these,” Kennedy wrote, the Colorado ruling must be set aside because it was not the result of “neutral and respectful consideration.”
The Atlantic jumped on this point, too, quoting Kennedy as saying, “the outcome of cases like this in other circumstances must await further elaboration in the courts.” They note that Masterpiece really is little more than the sides of the divided court “jockeying for position in those future cases.”
Couple all of this with the fact that there are in fact very substantial future cases right there in the wings of the Supreme Court stage, and the message is clear: not only is this fight far from over, it really hasn’t even begun. The LGBT activists know it’s far from over, and have cases queued up ready to go. The liberal media knows it’s far from over. The decision itself says it’s far from over. The swing vote himself says it’s far from over. Christians and conservatives had better catch up with this program. This is no time to go to sleep.
The Masterpiece Cakeshop win is a temporary PR win at best—only. We have not made any headway with it. The real test is still ahead.
(Cover photo by Ted Eytan, Flickr, CC BY-SA 2.0.)