by Lil Tuttle

In a 7-2 decision authored by Justice Anthony Kennedy (Justices Ginsburg and Sotomayor dissenting), the Supreme Court ruled that the Colorado Civil Rights Commission unconstitutionally discriminated against baker Jack Phillips, the owner of Masterpiece Cakeshop.

What does this decision mean for the rest of us?

The bait-and-switch culture war strategy failed the Left for once

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission was a closely watched case by many in the faith community, especially those with a solid understanding of the Left’s common bait-and-switch culture war strategy:

Cases like Masterpiece Cakeshop, however, seemed to represent a treacherous bait-and-switch; as soon as the campaign for “marriage equality” had been won, mean-spirited proponents of SSM began to insist—using all the coercive power of the state—that the public not only recognize gay marriage but approve of it—even celebrate it.

The gripe against Jack Phillips wasn’t that he wouldn’t “tolerate” homosexual ‘marriage’, but that he refused to use his creative talent to design a wedding cake to “celebrate” it. For that, the Left singled him out for punishment.

The Left’s strategy didn’t work this time, but the case will no doubt serve as a blueprint on how it can more subtly pursue its intolerance of sincere religious faith in the future.

The decision provides little protection to others of sincere religious faith

The majority decision “dodged the larger First Amendment questions at the heart of the case,” writes John Daniel Davidson, choosing instead to focus narrowly on the Colorado Civil Rights Commission’s blatant demonstration of hostility toward the religious beliefs embraced by the owner of Masterpiece Cakeshop.

The Colorado Commission upheld bakers’ rights to refuse their services in three other cases in which the bakers refused to create cakes with Christian religious messages. Justice Neil Gorsuch called out the double standard, as Davidson explains.

In those cases, the commission had upheld the bakers’ right to refuse their services. Gorsuch notes that the commission clearly applied a double standard, effectively engaging in discrimination against Phillips because of the substance of his belief [emphasis added].

Justice Kagan argued the point, essentially dismissing the substance of Phillips’ belief.

Kagan’s footnote encapsulates the Left’s thinking on this issue—namely, that Phillips’s First Amendment claim amounts to nothing. Kagan writes:

As Justice Gorsuch sees it, the product that Phillips refused to sell here—and would refuse to sell to anyone—was a ‘cake celebrating same-sex marriage.’ But that is wrong. The cake requested was not a special ‘cake celebrating same-sex marriage.’ It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike… And contrary to Justice Gorsuch’s view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with ‘religious significance.’

In other words, Phillips’s religious beliefs about marriage—beliefs, by the way, which are orthodox teachings in Christianity, Judaism, and Islam—are not to be taken seriously. Nor is the notion that a baker who is asked to make a specialty cake that celebrates what is, for the baker, a religious ceremony, might be engaging in protected speech by creating that cake, in much the same way a photographer or any other artist does.

A future court will determine a clarifying religious freedom principle

The nation will have to await a future case to provide a clarifying religious freedom principle. It’s likely, though, that such a case will be decided by a court with a different set of justices. Two current justices – Kennedy and Ginsburg – are widely thought to be considering retirement.

“The food fight over Masterpiece Cakeshop,” writes Ilya Shapiro, “shows how pivotal the next Supreme Court vacancy will be.”

People have simply forgotten the distinction between state and private action. There’s no clash of individual rights except when the government itself declines to consistently protect everyone. County clerks must issue marriage licenses regardless of their personal beliefs, but bakers aren’t government agents and so should maintain freedom of conscience.

Kennedy could’ve forestalled some of this mischief by making clear in Obergefell that the Constitution protects not just the right to “advocate” and “teach” religion but also to “exercise” it, and that regardless people on either side of the debate shouldn’t be forced to convey messages they don’t like. But he didn’t, so it’s left to the better angels of our pluralistic nature to tolerate views and lifestyles we may not like. And to fight like hell for judges who agree with that sentiment.


Read more:

Masterpiece Cakeshop Ruling Looks Tasty Bu is Only Half-Baked, Dov Fischer
Having Your Cake and Eating it Too, Mark Pulham
SCOTUS’s Masterpiece Cakeshop Decision is a Win – But It’s Also a Warning, David Harsanyi
The Masterpiece Cakeshop Dodge Sets Up an Epic Fight for the Next Supreme Court Vacancy, Ilya Shapiro
A Footnote in the Supreme Court’s Masterpiece Ruling Bodes Ill for Religious Liberty, John Daniel Davidson