In cakeshop case, Justice Kennedy takes left-wing bigotry to task

When the word came down on Monday that the Supreme Court had sided with Colorado​ ​baker Jack Phillips (the besieged Christian who, in 2012, refused to make a custom wedding cake for a same-sex couple), proponents of religious freedom — myself included — buzzed with excitement.

But as we read through the opinion, our excitement waned. Sure, the Court had handed down a 7-2 victory for Phillips, but the Court’s reasoning, in the words of my friend Nate Madden over at CRTV, was  “n​​arrow enough to shave with.​”​ 

{mosads}He has a point. The Co​urt could and should have done more. Bypassing the central issue in the case — whether freedom of conscience and the right to free speech shielded Phillips from the requirements of Colorado’s public accommodation law — the Court decided in Phillips’ favor on the grounds that the Colorado Civil Rights Commission failed to consider Phillips’ argument “with the neutrality required by the Free Exercise Clause.” Put differently, the court simply held the Commission had failed to be impartial in its adjudication process — not that Phillips’ religious convictions should necessarily prevail over Colorado law.


That said, friends of religious freedom and free speech still have much to celebrate. In an opinion authored by none other than Justice Anthony Kennedy (of Obergefell fame, you’ll recall — what fantastic irony!), the Court flipped the script entirely on what bigotry looks like in America, laying bare the seething hatred many on the left have for the free exercise of religion.

Accordingly, the debate concerning the substantive question of Phillips’ case has now been recast in a more balanced light — one which more accurately portrays what’s at stake for Christians everywhere.

Consider first the blatant contempt with which the Commission regarded Phillips’ plea to freely exercise his beliefs. Smearing the prospect of religion itself, one commissioner effectively blamed both slavery and the Holocaust on religion, decrying the notion that a person may legitimately hold a religious belief that runs contrary to progressive doctrine. “(I)t is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others,” the commissioner said. 

How tragic it is that so many on the left would see nothing wrong with a purportedly-neutral arbiter taking such a position. But thankfully, not Kennedy. The Reagan appointee and senior jurist seized on the commissioner’s hateful bile:

“To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ 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. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation.”

Kennedy’s position is remarkable. In a time when organized religion has arguably never been more unpopular and the First Amendment is under constant assault, the most ideologically moderate justice on the Supreme Court boldly and unequivocally smacked down a government entity for its arrogant hostility toward one of the Constitution’s most important guarantees.

And he didn’t stop there. Kennedy also discussed how the discriminatory remarks by the one commissioner went unchallenged. Neither the other commissioners, nor the reviewing state court, nor the briefs filed with the Supreme Court indicated disagreement with the first commissioner’s remarks. “For these reasons,” Kennedy wrote, “the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.”

In social justice parlance, when an illicit bias is reflected and goes unchallenged in our social and governmental institutions (like, for example, the courts), the bias is considered to be “systemic.” Couple that revelation with Kennedy’s observations that Phillips’ case was treated with “disparate consideration” and that “religious and philosophical objections to gay marriage are protected views,” and emerges the wild, but plausible idea that Kennedy sees religious equality as an increasingly important issue — maybe even on par with gender and racial equality.

Talk about the potential for a shift in how Americans talk about this issue. Imagine a Supreme Court that sees leftist hate as it sees white supremacy and Islamophobia: as scummy and un-American. Imagine a Court that is suspicious of euphemistically-named “human rights commissions,” “diversity initiatives,” and “re-education programs” the same way it is suspicious of literacy tests, poll taxes, and vagrancy laws: as ideal places to hide discrimination. Imagine a Court that understands words like “justice,” “tolerance,” and “equality” the same way it understands words like “states’ rights,” “small government,” and “patriot”: as sound, wholesome, American ideas that can be hijacked and used as dog whistles to inflame prejudices. 

Imagine a Supreme Court that sees how it is at least as unfair and humiliating to demand a Christian baker, because of his faith, close up shop or make his living in the next state over as it is to ask a gay couple to get their cake from another shop in town.

We may just get there. If we do, we’ll owe Masterpiece Cakeshop v. Colorado Civil Rights Commission an enormous debt of gratitude.

Thomas Wheatley is an attorney and writer. He is a regular contributor to the Washington Post’s “All Opinions Are Local” blog and was a 2016 Publius Fellow at the Claremont Institute. Follow him on Twitter @TNWheatley.

Tags Anthony Kennedy cakeshop cakeshop case Discrimination against LGBT people in the United States First Amendment to the United States Constitution Freedom of religion in the United States Jack Phillips Masterpiece Cakeshop v. Colorado Civil Rights Commission Opposition to same-sex marriage Religion in the United States Separation of church and state in the United States Supreme Court of the United States United States Constitution

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