The Colorado baker who chose not to be involved in providing services for a ceremony that violated his religious beliefs prevailed in the recent Masterpiece Cakeshop v. Colorado Civil Rights Commission decision at the Supreme Court. The vote was 7-2, and the result was much closer than the score indicates.
How can a 7-2 Supreme Court decision be narrow? If I had a nickel for every social media post along those lines in the past few days, I could cover this blog’s expenses for a good long while. I’m even hearing the question from people who should know better.
It wasn’t the vote that was narrow. It was the decision. The point on which the seven Justices agreed was that the baker hadn’t gotten a fair shake from the Civil Rights Commission. That’s it. That’s enough for now, to be sure, but the narrowness of the decision is fair warning that this was not a First Amendment landmark.
The religious beliefs of Jack Phillips, the baker at Masterpiece Cakeshop, include the understanding that marriage is a one-man-one-woman relationship. When he was asked back in 2012 to provide his services for a marriage ceremony between two men, he declined on religious grounds. Thus he placed himself in the crosshairs of the Colorado Civil Rights Commission, which found him in violation of the state’s anti-discrimination law.
What seven Supreme Court Justices managed to agree on six years later was that when considering the facts, the Commission hadn’t taken a neutral view of Phillips’s religious beliefs. That’s how the baker won his case.
Members of the Colorado Civil Rights Commission were outspokenly hostile as they considered the complaint against the baker. If only the Commissioners had been less outspoken and more nuanced in their anti-religious bigotry, Jack Phillips might not be celebrating a victory this week.
The Supreme Court decision quotes one of the Colorado Civil Rights Commissioners to illustrate what hostility looks like:
“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.”
Even Justices Stephen Breyer and Elena Kagan choked on that. It was left to Justice Anthony Kennedy to deliver a genteel smackdown. From the Masterpiece Cakeshop decision:
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. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.
In Masterpiece Cakeshop, there was no 7-2 vote affirming that a professional baker’s work, or any other artisan’s work, is a form of expression protected by the First Amendment. There was no 7-2 vote affirming that there’s a difference between discriminating against individuals and declining to support a ceremony. There was no 7-2 vote affirming that no one may be compelled to use one’s professional talents to deliver a message in violation of one’s conscience.
Instead, there was a 7-2 vote affirming that being openly bigoted against a person’s religion is not a good idea for a civil rights commissioner. That’s a win for everyone, as far as it goes.
Another case comes to mind that was narrowly decided in spite of a lopsided vote. In the 2014 McCullen case, the Supreme Court on a 9-0 vote threw out a Massachusetts “buffer zone” law. That law was supposedly a “safety” measure, but it was actually a way to discourage peaceful pro-life activity outside abortion facilities. The law would have survived a challenge if only Massachusetts had shown it had tried to use less-draconian laws to protect its interests. Narrow grounds? Sure. A victory? You bet.
Back to Masterpiece Cakeshop: one takeaway from the decision is the value of monitoring the public statements of members of administrative tribunals like the Colorado Civil Rights Commission – or like the New Hampshire Commission for Human Rights, for that matter. As we have just seen, matters small and large could turn on a commissioner’s bias.
