First Amendment paves the road to tolerance in Masterpiece case

First Amendment paves the road to tolerance in Masterpiece case
© Camille Fine

On Monday, the U.S. Supreme Court handed down its ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission. While the decision ends an almost six-year legal battle, a new journey begins.

This nation stands at the proverbial fork in the road. One path will lead us closer to a society controlled by hostility — one in which those who hold the dominant view in society will use government as a weapon to punish individuals who fail to adopt the prevailing orthodoxy. The other path will move us toward a truly tolerant society — one with room for individuals who believe, speak, and act differently, and one in which government preserves the individual rights of all.

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The road we take depends ultimately on whether we embrace the true purpose of the First Amendment. The Supreme Court in its ruling acknowledged the enduring power of the free exercise clause, but left unanswered questions regarding the vitality of the free speech clause.



Writing for the majority, Justice Anthony Kennedy criticized the Colorado Civil Rights Commission for its “clear and impermissible hostility toward [Jack Phillips’] sincere religious beliefs.” The opinion notes that Jack declined the request to create a cake celebrating a same-sex marriage because of his “sincere religious beliefs and convictions” and concludes Jack was denied “the neutral and respectful consideration of his claims.”

In a concurring opinion joined by Justice Neil Gorsuch, Justice Clarence Thomas bemoaned the high court’s failure to also rule on Jack’s free speech claim. He criticized the Colorado Court of Appeals for its decision that Jack’s conduct was not expressive, stating that such a finding “flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak.” Justice Thomas added that “[b]ecause the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day,” but warned that “in future cases, the freedom of speech could be essential to preventing Obergefell from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’”

Justice Thomas’s warning clearly describes the crossroads at which we stand. But as the Supreme Court prepared to hear Jack’s case, the First Amendment Lawyers Association filed an amicus brief that articulated one potential path forward. The group applauded pro-LGBT rulings of the Court in cases such as Lawrence v. Texas (invaliding a state law prohibiting same-sex sexual activity) and Obergefell v. Hodges (invaliding state laws defining marriage as the union between a man and a woman) as “an important part of the continuing movement ... to protect individual liberties.” But they also argued that the government is “barred from compelling others to agree with same-sex marriage or to show support for the practice by speech or symbolic act.”

After all, they explained, “our constitutional system protects matters of conscience, and it is not up to the state to dictate individual beliefs.” That’s because the First Amendment’s protection of expression and belief “does not turn upon the truth, popularity, or social utility of the ideas and beliefs which are offered.”


Those who urge us to take the first road, toward government-imposed conformity, reject the reasoning of the First Amendment Lawyers Association and, more importantly, the U.S. Supreme Court. A tolerant society, they say, is one whose citizens uniformly embrace the socially popular view. Those who government officials consider “outliers” — like Jack — are not valued members of our diverse national community, but rather social outcasts that must be re-educated or removed. This refining process will repeat ad nauseam until, at last, a shared social consciousness emerges … groupthink at its Orwellian best.

This restriction of civil rights is justified, we are told, to ensure that African Americans and LGBT individuals are not turned away en masse from restaurants, stores, and services of all kind. In other words, “yes, we are taking away your First Amendment rights, but only because bad things will happen if we don’t.”

Contrary to such extreme characterizations, however, Jack — and creative professionals like him — serve (and will continue to serve) all people. And the Supreme Court’s ruling does not throw open the doors for discrimination, and we are not on a fast track back to the Jim Crow era. The fact is, nondiscrimination laws were never meant to compel the creation of art or expression in violation of one’s conscience. The facts in Masterpiece Cakeshop help illustrate why: Jack’s decision not to celebrate a message contrary to his faith is not discrimination against a person. Jack can disagree and still serve anyone who walks in his door.

The Supreme Court’s decision simply clarifies that the government may not show hostility toward people of faith, Jack included. It reminds us of the importance of true tolerance and respect for differences of opinion. The second road, guided by the First Amendment, is not a demand for forced conformity; it is instead a call for the acceptance of opposing views, not their elimination.

When the Supreme Court issued its ruling in Obergefell, Chief Justice John Roberts wrote in his dissent: “[I]t is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s ‘better informed understanding’ as bigoted.” Masterpiece Cakeshop reminds us that the government doesn’t get to play favorites, shifting the rules simply because of someone’s religious views.

The men who entered Jack’s shop are free to invite his participation in their wedding ceremony; but Jack should be similarly free to decline the offer, without fear of government punishment. No one is forced to agree with either position, but we should all celebrate their freedom to live and work consistent with their beliefs.

James Gottry is legal counsel with Alliance Defending Freedom, which represented Jack Phillips and Masterpiece Cakeshop.