In 'Masterpiece' case, the Supreme Court will decide what tolerance requires

In 'Masterpiece' case, the Supreme Court will decide what tolerance requires
© Camille Fine

This week, the U.S. Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission. In the coming months, the justices will grapple with the question of what tolerance demands in a free society. And their conclusion could profoundly impact the freedoms of expression, conscience, and belief, not just for cake artist Jack Phillips, but for our society.

This moment was foreshadowed in the Supreme Court’s 2015 decision in Obergefell v. Hodges. Even as a 5-4 majority of the high court invalidated state laws defining marriage as the union between a man and a woman, both the majority opinion and the dissents proclaimed the court’s belief that tolerance is — or should be — a two-way street, though they also revealed a certain dissonance about what tolerance demanded.

In the opinion, Justice Anthony Kennedy wrote, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”

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In his dissent, Chief Justice John Roberts noted that while “it 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.”



In a separate dissent, Justice Samuel Alito noted — with some skepticism — that “the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected.” He added, “We will soon see whether this proves to be true.”

Nearly two-and-a-half years later, the Supreme Court returned to this unsettled issue during oral arguments in Masterpiece Cakeshop.

John Roberts did so directly, reminding the litigants that the court in Obergefell “went out of its way to talk about the decent and honorable people who may have opposing views.” The chief justice said that comparing people like Jack to individuals opposed to racial equality failed to take “full account … of that concept in the Obergefell decision.”

Alito cited three examples of the Colorado Civil Rights Commission acknowledging the right of a cake artist “to refuse to create a cake with a message that is opposed to same-sex marriage,” and asked why Jack Phillips was “compelled to create a cake that expresses approval of same-sex marriage.” He called this incongruence “disturbing,” stating that that the Colorado Civil Rights Commission’s decision reflected “what appears to be a practice of discriminatory treatment based on viewpoint.”

Shortly after Alito said this, Kennedy discussed what he perceived to be a lack of tolerance on the state’s part: “[T]olerance 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’ religious beliefs.”

Many court watchers seized on Kennedy’s statement and immediately began speculating as to the likely outcome. That isn’t surprising, given the number of times he has cast the “deciding vote” in closely contested cases. Yet such prognostications are premature; the justices peppered both sides with difficult and probing questions, so much so that the court extended oral arguments by nearly 30 minutes.

But aside from any ill-advised attempts to read the tea leaves, these statements from the justices are significant, not because they indicate how the court will rule, but because they demonstrate how the court could rule in a way that protects freedoms of expression, conscience, and belief, while bringing clarity to questions left unresolved in Obergefell. Doing so requires a principled answer to one question: In a free society, what does tolerance demand?

A free society allows artistic expression, it allows belief, and it allows the peaceful exercise of conscience. And the demands of tolerance, properly understood, do not burden such freedom; rather, they elevate it. Because in a free society, tolerance demands the acceptance of opposing views, not their elimination. In a free society, tolerance ensures that a willingness to serve all people is not distorted into a coercive demand to create all art or celebrate all messages.

If the Supreme Court protects Jack’s freedoms of expression and conscience, it can demonstrate that “decent and honorable people” may differ on the meaning of marriage, and all of us remain free to peacefully live out our values on that important issue.

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