FILE–In this Wednesday, Nov. 8, 2017, file photograph, Jack Phillips, right, owner of Masterpiece Cake, confers with a supporter after a rally on the campus of a Christian college in Lakewood, Colo. The small rally was held to build support for Phillips, who is at the center of a case that will be considered by the U.S. Supreme Court in December. The case may determine if business owners like Phillips are having their right of religious liberty and free expression violated by having to offer their wedding services to same-sex couples. (AP Photo/David Zalubowski, File)
Just a little earlier today the US Supreme Court handed down a long-awaited decision in Masterpiece Cakeshop vs. Colorado Civil Rights Commission (CCRC). While the decision was 7-2, the fact that Anthony Kennedy, who never met a perversion he couldn’t agree to cheer on in the name of tolerance, should be the first warning sign that this is not unalloyed good news.
The core of the decision is not that the CCRC acted improperly but that they acted with a rather blatant hostility to the idea that religion has any place in society. The quote from the transcript of the deliberations of the CCRC:
“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.”
And they also found that the CCRC had ruled in favor of bakers who had refused to create cakes with religious messages.
But this is a very narrow opinion that addresses the facts in this specific case. If you want to see what the ruling would have been on a purely “free exercise” grounds, then I’d suggest this is it:
Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. As this Court observed in Obergefell v. Hodges, 576 U. S. ___ (2015), “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Id., at ___ (slip op., at 27). Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.
Justices Thomas, Gorsuch, and Alito are clear votes for religious liberty. I don’t know if Roberts signed on to the majority and not the concurrences because he would vote that way or because he wanted to suck up to Kennedy for his vote on another decision. Regardless, it looks like if a purely “free exercise” case went before the Supreme Court with these same facts, that the best the baker could hope for is a 5-4 loss.
All of this simply underscores just how close the Free Exercise Clause is to becoming as relevant as the Third Amendment. If you can be compelled to participate in an activity that is a mortal sin and are not allowed to refuse, then religious liberty has ceased to be anything more than a Trivial Pursuit question.