Justice Anthony Kennedy’s surprisingly tough questioning of the lawyers for the state of Colorado and the gay wedding-cake customers at Tuesday’s Supreme Court argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission bodes well for free speech. Kennedy’s clear skepticism about a central premise of the discrimination case against Masterpiece proprietor Jack Phillips, and his distaste for the apparent religious bias against Phillips shown by at least one of the state commissioners, is cause for at least cautious optimism that the Court will put an end to one of the most disturbing threats to First Amendment rights in years.
Phillips is a devout evangelical Christian who refuses to make cakes for Halloween or for bachelor parties, and would not design them with racist or anti-gay themes. His path to the Supreme Court began five years ago, in July 2012, when a gay couple, Charlie Craig and David Mullins, came to his suburban Denver shop seeking a custom-made cake for their wedding. He declined the business because of his religious beliefs, but offered to sell them any off-the-shelf baked goods, or to design cakes for them for other occasions. The state Civil Rights Commission found that Phillips had discriminated against Craig and Mullins, in violation of the state’s gay rights law, and ordered him to design wedding cakes for gay couples if he continued to do so for straight couples. Rather than violate his conscience, Phillips stopped making any wedding cakes, thus losing 40 percent of his business.
Phillips’s case joins others around the country in which government civil rights authorities and gay couples have brought actions under state or local gay rights laws to compel photographers, florists, and cake designers to provide customized personal services for same-sex weddings—frequently requiring their attendance at the ceremonies, despite their religious objections to same-sex marriage. None of the small-business and crafts people in the dock in these cases has refused to sell commercial goods to gay people. Like Phillips, all have said that they would be happy to provide previously prepared products for same-sex weddings, and several had longstanding business relationships with the gay customers who sued them.
Lower courts have said that this doesn’t matter; refusal to service the same-sex wedding of customers whom one otherwise does business with is still discrimination based on sexual orientation, because, in the words of the Colorado appellate court in Phillips’s case, “the act of same-sex marriage is closely correlated to . . . sexual orientation” in that it is “engaged in exclusively or predominantly by gays, lesbians, and bisexuals.” But by that logic, a black carpenter who refuses to make the cross for a Ku Klux Klan rally, and a black photographer who refuses to photograph the festivities, are guilty of racial discrimination, even if they make cabinets for white people and take family photos of them, since the act of attending a Klan rally is engaged in exclusively or predominantly by whites and is thus “closely correlated” to race.
Leading gay-marriage proponent Andrew Sullivan has called these cases “repellent” and “anathema,” and it is not hyperbole to view them as an almost unprecedented assault on First Amendment rights. Being compelled to use one’s creative talents to “celebrate something that offends your beliefs,” or to bear witness against one’s conscience, has an Orwellian cruelty that makes it even more vile than negative restraints on freedom.
If the state can commandeer wedding photographers to celebrate gay marriage, how big a slide is it to conscripting writers into the cause as well? If that seems far-fetched, consider that the lawyers bringing these cases argue that photographers, bakers, and florists forego their religious and artistic freedoms because they offer their services in the commercial market. But so do most freelance writers, lawyers, and clergymen, who typically charge a small fee to perform weddings.
In the Masterpiece Cakeshop argument, all eyes were on Kennedy, the swing vote who has authored the Court’s four major gay-rights decisions, including the declaration of a right to same-sex marriage in the 2015 Obergefell case, but who has also joined opinions holding that gay civil rights claims did not trump the First Amendment speech and associational rights of the Boy Scouts or of St. Patrick’s Day Parade marchers. Still, many observers believe that Kennedy, 81 and conscious of his gay rights legacy, is likely to side against Phillips. Some of his early questioning of Phillips’s lawyer and of the U.S. Solicitor General, supporting Phillips on behalf of the Trump administration, seemed to bear this out. Kennedy worried about an “affront to the gay community” if Phillips prevailed and similarly inclined bakers responded by putting signs in their windows announcing that “we do not bake cakes for gay weddings.” Even more speculatively, he raised concern about “bakers all over the country” succumbing to “urgent requests” from unnamed sources not to service gay weddings.
But his toughest questioning was reserved for lawyers on the other side. Challenging the claim that Phillips had declined to serve Craig and Mullins because of their identity as gay people, rather than because of his religious opposition to same-sex marriage, Kennedy told their ACLU lawyer, “I think . . . your identity thing is just too facile.” He was perturbed that one of the civil rights commissioners who decided Phillips’s fate had stated that “freedom of religion and religion has been used to justify all kinds of discrimination” and that it was “despicable” for “people . . . to use their religion to hurt others.” Pressing the state’s lawyer to disavow that statement, Kennedy asked if the judgment against Phillips could stand if “we thought there was a significant aspect of hostility to a religion in this case.” Kennedy cut to the heart of the case, and to his own effort to balance his gay rights sympathies with First Amendment rights, when he said:
Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs.
“Accommodation is quite possible” in the case, Kennedy said. Indeed, there are few situations in which tolerance of conscientious objectors to the reigning orthodoxy seems at once so proper and so easy. The rapid acceptance of gay marriage—officially opposed on religious grounds by Barack Obama just six years ago—has been one of the swiftest, most epochal social changes in history. Surely the rights of the minority who still hold to President Obama’s 2011 position, and the even smaller minority who will sacrifice income in service of this belief, can be accommodated without “undermining every civil rights law,” as Justice Breyer fretted, or triggering the mass boycott of gay weddings that concerned Kennedy. In a pluralist democracy that values diversity and freedom, these dissenters should be tolerated and respected (as Kennedy himself said in Obergefell), rather than brought to heel.
Photo by Mike Flokis/Getty Images