The Supreme Court says: Let them eat hate

June 14, 2018

Christopher Baum and Mukund Rathi analyze the Masterpiece Cakeshop decision — and argue that there’s a greater threat to equality than many commentators acknowledge.

A U.S. SUPREME Court decision in favor of a baker who refused to making a wedding cake for same-sex couple should set off alarm bells for supporters of LGBTQ equality — after the justices decide that the baker was the one being discriminated against.

In its 7-2 ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court sided with an anti-LGBTQ baker who claimed he was discriminated against by the Colorado Civil Rights Commission on the basis of his conservative Christian religious beliefs, after the commission ruled that he had violated state anti-discrimination law.

The assessment by most liberal commentators and news reports, including the New York Times, was that this was a “narrow” ruling. The Supreme Court reiterated that gay people have civil rights that must be respected, they argued. The problem here was how the state commission handled the case.

Supporters of LGBTQ rights rally outside the U.S. Supreme Court as the Masterpiece Cakeshop decision is announced
Supporters of LGBTQ rights rally outside the U.S. Supreme Court as the Masterpiece Cakeshop decision is announced (Ted Eytan | flickr)

But the Colorado Civil Rights Commission did little, if anything, discriminatory toward Phillips. And by focusing on how the commission supposedly mishandled the case, Masterpiece helps to legitimize the narrative that conservative Christians are under attack and in dire need of legal protection.

The Supreme Court has done this before, as in Burwell v. Hobby Lobby, which provided an exemption for religious anti-choice corporations from Obamacare’s contraceptive mandate.

In 2014, in Obergefell v. Hodges, the Supreme Court formally recognized the constitutional right to same-sex marriage. But to make that right a concrete reality, LGBTQ people also need to win civil rights to access all of the services that make marriages what they are.

Masterpiece was an opportunity to move in that direction. Instead, the Court took a step backward.

IN THE summer of 2012, Charlie Craig and Dave Mullins visited Masterpiece Cakeshop in Lakewood, Colorado, and told the shop’s owner, Jack Phillips, that they wanted to buy a cake for their wedding.

Phillips replied that he would be willing to sell them other products, but refused to make a wedding cake on the basis of his conservative Christian opposition to gay marriage.

Under the Colorado Anti-Discrimination Act (CADA), it’s illegal for a business to “refuse, withhold from or deny” goods or services to an individual or group because of sexual orientation. Phillips’ refusal was thus a clear case of discrimination.

Phillips’ lawyers argued that requiring their client to make this cake would violate his First Amendment rights to free speech (because he would be compelled to “say” something he didn’t want to say) and free exercise of religion (because it would involve him in actions that went against his religious beliefs).

The Colorado Civil Rights Commission, and subsequently the Colorado Court of Appeals, rejected these arguments and ruled that Phillips had violated the law. Phillips then appealed to the Supreme Court, which — despite the obvious and open nature of the discrimination in this case — overturned the previous rulings and supported Phillips.

But the justices did so not on the basis of his First Amendment arguments — on which they made no ruling — but rather because they determined that the Colorado Civil Rights Commission had discriminated against Phillips’ beliefs.

It wasn’t the sweeping victory that the Christian Right wanted — and that many on the left feared — but it was a win for their side nonetheless, no matter how many liberal commentators seem determined to argue otherwise.

THE COURT based its ruling that Phillips had been the victim of religious discrimination on two factors.

First, it held that certain public remarks made by members of the Colorado Civil Rights Commission showed “clear and impermissible hostility” toward his “sincere religious beliefs.” In the majority opinion, Justice Anthony Kennedy cited the following comments — made by one of the commissioners at a public hearing in July 2014 — as especially egregious:

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.

“To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’,” Kennedy argued, “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.”

But the speaker wasn’t describing Phillips’ faith (or anyone else’s) as “despicable.” What they found despicable was the use of religion “to justify discrimination” or “to hurt others.”

If these words are evidence of hostility toward sincere religious beliefs, then practically any observation about the ways in which religion can be used as a justification for bigotry or cruelty could be construed as evidence of hostility. That’s good news for conservative Christian bigots, but bad news for everyone else.

THE COURT majority’s second objection concerned the antics of one William Jack, a conservative Christian activist who, apparently in direct response to Phillips’ case, visited three bakeries and asked each to make him a cake decorated with explicitly anti-gay slogans.

All three bakers refused, and the Colorado Civil Rights Commission ruled in their favor on the grounds that the decorations Jack was requesting were “offensive in nature.”

But the Supreme Court majority ruled that the “inconsistent” handling of these cases — it was evidently fine for the three bakers to refuse to serve Jack, but not acceptable for Phillips to deny service to Craig and Mullins — was further evidence of the Commission’s bias against Phillips’ conservative Christian beliefs.

Justice Ruth Bader Ginsburg, in a dissent joined by Justice Sonia Sotomayor, laid bare the flimsiness of this reasoning: Craig and Mullins had simply asked for a “wedding cake,” without going into further detail about the design or decorations.

This meant that the product they were asking for was indistinguishable from the kind of cake Phillips would gladly have provided to any couple, gay or straight. The only reason he refused to serve Craig and Mullins was because they were a gay couple.

The bakers who refused Jack’s requests, on the other hand, did so because they considered specific elements of his design to be offensive. Ginsburg argued that this would have been the case no matter who was making the request. Unlike Phillips, the bakers would have refused to provide this product to anyone who asked for it.

As with the supposedly “hostile” language of the members of the commission, the Court again showed extreme solicitude toward the Christian right.

But what if Craig and Mullins had requested specific words or images, such as a celebration of their gay identity, which Phillips found offensive? In that case, his situation would be legally closer to that of the bakers who refused to make Jack’s cakes. Would the state be justified in requiring Phillips to make the cake?

Civil rights laws present several tensions that the left should think about when making demands.

There is a common-sense tension between providing vital protections to oppressed groups and the rights of individuals against coercive state power. But this isn’t a simple dichotomy, because those rights against state power can also themselves be key protections for oppressed groups.

For example, many socialists are rightly opposed to hate speech laws and to empowering the state and universities to stop far-right provocateurs from speaking. We want to use the right to free speech to organize and demonstrate our opposition to bigots. But even this isn’t a one-size-fits-all formula — there are further tensions that arise and will need to be taken seriously.

WHAT ABOUT the liberal response to the Masterpiece decision?

“In law,” wrote ACLU National Legal Director David Cole in the Washington Post, “you can lose a battle but win the war.” That, he maintains, is what happened in the Masterpiece case.

In Cole’s view, the Court clearly rejected “the argument that there is a First Amendment right to discriminate.” He points to statements in Kennedy’s decision such as “it is a general rule that [religious and philosophical] objections do not allow business deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Cole continues:

[W]hat’s critical is that this reasoning is a one-time ruling for this case only. The court made clear that states are free to require businesses, including bakers, to serve gay and lesbian customers equally, including in the provision of wedding cakes. In fact, Charlie Craig and David Mullins could go right back into Masterpiece Cakeshop today and request a cake to celebrate their wedding anniversary — and if Jack Phillips refused them, he would have no First Amendment right to turn them away.

But the Court didn’t rule on the issue of whether Phillips had a “First Amendment right to discriminate.” And while it’s true that Kennedy’s decision contains some robust language regarding equal treatment and dignity for LGBTQ people, the reality is that none of it is binding on any future court.

This is because Kennedy’s remarks on that subject are what is called “dicta”: statements in a court decision that have no direct bearing on the legal argument that settles the case, and that therefore don’t establish any binding precedent.

Of course, judges certainly may — and often do — take “dicta” such as Kennedy’s pro-LGBTQ-equality statements into consideration when making their decisions. But they are not bound to do so.

Contrast this with, for instance, the obligation of all judges to follow the precedent set by the Supreme Court’s ruling in Obergefell v. Hodges that the 14th Amendment’s equal protection clause confers the right to marry on same-sex couples. This determination was obviously central to the court’s legal argument in deciding the case.

This doesn’t mean Kennedy’s remarks are useless. They’re part of the record, and may be considered in cases. In fact, they have already been quoted, at length, as background in a decision by the Arizona Court of Appeals upholding Phoenix’s anti-discrimination law against a challenge by — you guessed it — conservative Christian business owners.

But if the judges in the Arizona case had sympathized with the business owners instead of the city, they wouldn’t have been bound by Kennedy’s remarks. They would have been perfectly free to ignore them, and instead quote the “dicta” of conservative justices like Samuel Alito or Clarence Thomas in support of their ruling in favor of the business owners.

MEANWHILE, THE other side of the coin is even worse. The portions of the Court’s decision that do set a binding precedent are the arguments they used to determine that Phillips’ rights had been violated.

These arguments, feeble as they are, now constitute a set of tools lying ready for any conservative judge in the country to pick up and use to give further priority to “religious freedom” over the rights of the oppressed.

With Trump stocking the courts with hard-right judges, and with conservative Christian groups mounting one test case after another, it’s only a matter of time before Masterpiece is invoked to uphold the “right” of another conservative Christian bigot to get away with open discrimination.

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This is what threatens to be the true legacy of the Masterpiece case, and this is why nobody should downplay the danger it represents.

Rather than be lulled into complacency by naïve ideas of having “lost the battle but won the war,” we must recognize that the “war” is a long way from being won — and that the threat of losses are ever-present.

The Supreme Court, no less than the other branches of government, is dangerously influenced by the ideology of the Christian Right. To win against such forces, we must build a mass movement that will fight uncompromisingly for the full equality and dignity of all people.

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