Comment

The Supreme Court’s ‘gay cake’ decision is a relief – at least until the next case

Baker Jack Phillips in his Masterpiece Cakeshop, which has been at the centre of a legal battle (CNS)

The Supreme Court has ruled in favour of Masterpiece Cakeshop in their case against the Colorado Civil Rights Commission by a margin of 7-2.

The case saw Jack Phillips, a Christian baker, taken before the Colorado Civil Rights Commission for refusing to bake a wedding cake for a same-sex couple. The couple, Charlie Craig and Dave Mullins, planned on marrying in Massachusetts and hosting a party in Colorado. The case was originally brought against Mr Phillips in 2012, at which time same-sex marriage was not recognized in Colorado.

Mr Phillips claimed that, as a Christian, a central part of his religion was the belief that marriage was exclusively between a man and a woman. Creating a wedding cake for a same-sex couple would, he said, be effectively supporting something which goes against his religion.

Mr Phillips was clear that he would happily sell any other good or service to Messrs Craig and Mullins – he specifically and exclusively declined to supply them with a wedding cake.

Arguments were heard for and against the idea that by baking a cake Mr Phillips would be employing artistic expression – effectively “speaking” in favor of same-sex marriage. Thus, insisting that he had to make wedding cakes for same-sex weddings, although religiously opposed to them, would be to violate his right to free speech.

At issue before the Court was where his right to his religious belief ended and the rights of gay people to have access to good and services in the market free from discrimination began. It was, and remains, an emotive question.

The expectation of many was that the Supreme Court would settle the matter and draw some kind of line along which service provision and protected speech could be separated. In the end, the majority opinion of the court was less of a definition of protected speech and more of an excoriation of the Colorado Civil Rights Commission.

The substance of the decision, and likely the source of the wide margin in favour of Mr Phillips, had less to do with pâtisserie as protected speech and much more to do with the shameful treatment he received at the hands of Colorado authorities.

Writing for the majority, Justice Kennedy noted that the Colorado Civil Rights Commission had fallen well short of the “neutral and respectful consideration to which Phillips was entitled.” Instead, the Commission showed a “clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”

The Court’s decision quoted from the Commission’s public hearing of the matter, during which members expressed the clear opinion that if you wanted to do business in Colorado, you had to leave your beliefs at the door. One member of the Commission called Phillip’s defence “one of the most despicable pieces of rhetoric that people can use” and drew a direct equivalence between Mr Phillips’ desire not to bake a cake and supporting slavery and the Holocaust. Justice Kennedy also noted the lack of any objection to these statements, either by the Commission itself or by the Colorado Court of Appeals, even though they were made in the course of a deliberative process.

The Supreme Court also found that at least three separate bakeries had declined to provide cakes with explicitly anti-same-sex marriage messages and had been upheld in doing so by Colorado authorities. These bakers offered virtually the same defence as Phillips, with the only differences between them being that they were in favour of gay marriage, and the offence they took at the request to bake cakes was not religiously grounded. The Colorado Court of Appeals relegated this injustice to a footnote, in which they found that this presented no evidence of unfairness because the request to bake anti-same-sex marriage cakes was itself “offensive.” The Supreme Court held (as it has in the past) that the state has no business appointing itself the arbiter of what is or is not offensive, and that in doing so they had effectively legitimised one view of same-sex marriage and delegitimised opposition to it.

The Court’s decision actually tells us very little about where the limits of free speech and religious freedom now are. Instead, they focused on the requirement that in considering cases concerning the free exercise of religion, there not be “even subtle departures from neutrality.” The Colorado Civil Rights Commission departed from neutrality with the subtlety of a politically driven steam engine sounding its whistle.

While there will be relief for many at the apparent victory for free speech and freedom of religion, the matter is far from settled. Justice Kennedy makes very clear that this decision was based on the way in which Mr Phillips was treated by the lower courts, and the manner in which his case was decided. The decision, and the majority behind it, was a product of the specific circumstances of the case. Future cases can and will be decided on different details, and the scope for precedent here is limited.

Masterpiece Cakeshop will not, despite what some might have hoped, go down in history as a seminal case defending religious freedom in the public sphere. But it can and should be celebrated for what it is: a clear victory over an abuse of law and authority to unfairly target and discriminate against people of faith.

The threat to religious liberty has always been the imposition of a government-backed orthodoxy. Masterpiece strikes a much needed blow against the secular-liberal religion which is now seeking establishment status.