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Against the Religious Liberty Optimists

Responding to: What the Masterpiece Cakeshop Decision Means for the Future

By: Darel Paul

June 27, 2018

In an equally lopsided and narrow 7-2 ruling, the Supreme Court majority in Masterpiece Cakeshop v. Colorado Civil Rights Commission found in favor of Colorado baker Jack Phillips in his claimed right to the free exercise of religion. Rather than a victory for religious liberty, however, this opinion merely delays a more serious reckoning that will not be long in coming.

Phillips argued that his sincerely held religious beliefs forbid him from endorsing same-sex marriage, and that the creation and design of a custom wedding cake is precisely such an endorsement. Three justices (Gorsuch, Alito, Thomas) endorsed Phillips’ substantive claim while four (Ginsburg, Sotomayor, Kagan, Breyer) rejected it. The debate over the religious liberty implications of Masterpiece Cakeshop thus turns on reading between the lines of Justice Kennedy’s majority opinion, once again (perhaps along with Justice Roberts) the balance of the Court.

Kennedy would like to have his cake (LGBT equality) and eat it, too (religious liberty). But if forced to choose, Kennedy prefers to have his cake. While the great decider in all the Court’s most significant cases to date on LGBT equality recognizes “the right of all persons to exercise fundamental freedoms under the First Amendment,” Kennedy pits this right against others: “the rights and dignity of gay persons,” the value of gay persons’ “dignity and worth,” their right to be free from “community-wide stigma,” and from “serious stigma on gay persons.” Combine this with Kennedy’s famous 2013 Windsor and 2015 Obergefell rulings striking down the federal Defense of Marriage Act and nationalizing same-sex marriage, and the balance of Kennedy’s concerns seems clear.

Religious liberty advocates have made much of Justice Gorsuch’s concurring opinion which they argue is the right one. I make no professional claim to nor interest in the correct interpretation of the law here, but instead read Masterpiece Cakeshop in its wider extra-legal context. Religious liberty has been in steep cultural and political decline among elites for at least a decade. In fact, if it wasn’t for explicit religious freedom legislation, Hobby Lobby would likely have been decided the other way. The key test case now is Arlene’s Flowers v. Washington with circumstances largely similar to those of Jack Phillips. Just this week the Supreme Court remanded the case back to the Washington Supreme Court to reconsider in light of Masterpiece Cakeshop. Note that Washington state has no explicit religious freedom law, and the state court decision in Arlene’s Flowers was unanimous against her religious freedom claims. There seems little room for religious liberty optimism here.

The remanded Arlene’s Flowers won’t be the first case adjudicating between LGBT equality and religious freedom in the wake of Masterpiece Cakeshop. Yet another parallel case was decided by the Arizona Court of Appeals just three days after Masterpiece Cakeshop. In Nib & Brush v. Phoenix, the Arizona court ruled that a small Phoenix calligraphy studio which refused its services to same-sex weddings would be in violation of the city’s anti-discrimination public accommodation code despite the religious liberty guarantees of both the Arizona Constitution and the Arizona Free Exercise of Religion Act. The justices not only failed to find any substantial burden on the religious beliefs of the owners of Nib & Brush, but also argued that the state’s “compelling interest in preventing discrimination” justified imposing a substantial burden in any case. In their pièce de résistance, the justices also cite both the Kennedy and Kagan opinions in Masterpiece Cakeshop for support.

Are proponents of religious liberty more realistic in resting their hopes in free speech claims? Justice Thomas was the only member of the Supreme Court to engage the question in Masterpiece Cakeshop, coming down firmly in favor of Phillip’s right to freedom from compelled speech. In Thomas’ view, the creation of custom wedding cakes is clearly expressive conduct protected by the Constitution. The Colorado judges in Masterpiece Cakeshop, not to mention the Washington judges in Arlene’s Flowers and the Arizona judges in Nib & Brush, insist that it is not. On this narrow technical issue turns the great cultural struggle between two ultimately incompatible worldviews in contemporary America—progressive liberalism and traditional Christianity. That the latter now seeks refuge in the protection of judges while the former passes legislation in the largest cities and states in the country says everything one needs to know about the current balance of power. And that is the greatest lesson these cases teach for the future of American law and politics.

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Against the Religious Liberty Optimists