Supreme Court's cakeshop ruling is not narrow — and that's a good thing

Supreme Court's cakeshop ruling is not narrow — and that's a good thing
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Monday, in one of the most anticipated Supreme Court decisions of the year, the Court ruled in favor of the baker in Masterpiece Cakeshop. In a 7-2 decision written by Justice Kennedy, the Supreme Court said that tolerance is a two-way street, and that Jack Phillips could not be forced by the Colorado Civil Rights Commission to create wedding cake for a ceremony that would violate his conscience.


Some have asserted that this recent ruling is “narrow,” and that it sets “slim” legal precedent. In fact, the opposite is true. Here are just three aspects of the Court’s decision that will have broad implications in other First Amendment cases for years to come.  


1. Religious people must be treated equally.  

Phillips is not the only baker in Colorado who objected to using his talents to support something he disagreed with, but he was the only one to be punished for it. As Justice Kennedy pointed out in his opinion, at least three other Colorado bakeries refused to create cakes that opposed same-sex marriage rather than celebrate it. Colorado said that these bakers shouldn’t be forced to create a cake they disagreed with. But the State refused to offer this same protection to Phillips.

Justice Kennedy said that such a double standard provides “another indication of hostility” forbidden by the Free Exercise Clause of the Constitution. In other words, rules that disfavor religious individuals while favoring others are unconstitutional.

This rule has relevance in lots of other contexts, even if one looks only to cases that my law firm, Becket, has handled over the last few years. It means that a city can’t approve zoning requests for Christian churches but deny them for mosques. It means that the highway administration can’t decide to protect a tattoo parlor but destroy a Native American burial ground across the road. And it means that a prison can’t decide to allow prisoners to wear beards for medical reasons but outlaw the same beard motivated by faith. In other words, this is a rule that benefits all Americans, and unpopular religious minorities in particular.

2. Religious hostility is per se unconstitutional.

Justice Kennedy had harsh words for government officials who referred to religious liberty as a “despicable piece of rhetoric.”

Justice Kennedy said that “(t)his sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of ... anti-discrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation.” Government “cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.” And the government doesn’t even get a chance to argue that it had a sufficient justification for that type of religious discrimination. It is per se unconstitutional.

Unfortunately, government hostility of this type is not rare. But the Court’s decision will help ensure that it is no longer constitutionally defensible. For example, in another case being litigated by Becket right now, the City of Philadelphia has cut off referrals of foster children to one of the City’s best foster agencies, Catholic Social Services, because the City disagrees with the agencies’ longstanding religious beliefs about marriage. The mayor of Philadelphia has said that these beliefs are “not Christian." Now, because of the Court’s ruling in Masterpiece, these government officials are going to have a very tough time defending their religious hostility.

3. Dignitary harm can’t trump First Amendment rights.

Finally, possibly one of the most important implications of the Masterpiece decision is this: Claims of offense or dignitary harm are not sufficient to trump religious liberty rights. This has long been a bedrock principle in the free speech context. But opponents of religious rights have argued that this principle should not apply if someone’s beliefs cause others to feel hurt, embarrassed, or insulted.  

As my colleague Mark Rienzi and I argued in a recent Boston College Law Review article, these justifications are completely foreign to our First Amendment jurisprudence and would create dangerous precedent. Such a rule would allow the government to stamp out just about any religious belief that is politically unpopular. And that sort of might-makes-right approach is the opposite of what our pluralistic democracy should look like.

Happily, the Supreme Court agreed. Relying on principles drawn from the Supreme Court’s freedom of speech cases, Justice Kennedy stated that “it is not ... the role of the State or its officials to prescribe what shall be offensive” nor to prohibit conduct “based on the government’s own assessment of offensiveness.”

One need not agree with Phillips’ beliefs to recognize that these principles offer protection for Americans across the board. And in that sense, this decision is as broad as America is diverse.

Stephanie Barclay is counsel at Becket, a religious liberty law firm that protects people of all faiths, which filed a brief in favor of Masterpiece Cakeshop. Barclay will be joining the faculty of BYU Law School as an Associate Professor of Law, and she is the co-author of "Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions" in the Boston College Law Review.