Well that was pointless.
The holding of the Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission — to the extent that the case holds anything at all — is that conservative Christians are special snowflakes who have to be given a safe space. And that’s…about it. States remain free to enforce civil rights laws — including civil rights laws that the religious right finds objectionable — but when they speak of religious conservatives they must do so politely and without accusing them of harboring bad motives.
Masterpiece is the jurisprudential equivalent of a Bari Weiss column. It bends over backwards to see chauvinistic conservatives in the most favorable light, while completely missing the broader, more important issues at stake in the case. The opinion reads as if the central matter at issue was not so much about resolving a conflict between religious bakers and same-sex couples as it was about an urgent need to police the tone of civil rights commissioners.
The case involves Jack Phillips, a baker who refused to sell a wedding cake to a gay couple, citing his religious objections to same-sex marriage. The Court sides with Phillips, but on exceedingly narrow grounds. Notably, seven members of the Court, including liberal Justices Stephen Breyer and Elena Kagan, joined the majority. So this decision appears to be a compromise that was designed to resolve this one case without doing much else.
Indeed, Justice Anthony Kennedy’s opinion for the Court goes out of its way to place a special emphasis on all of the things the Court is not deciding in this instance. Kennedy writes that it “might make a difference” whether Phillips refused to design a custom cake or simply refused to sell “any cake at all” to same-sex couples, but does not elaborate much on why. Kennedy concludes his introduction with an especially equivocal statement — “it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.”
Despite Phillips’ victory, Masterpiece contains some good news for same-sex couples and for supporters of equality more broadly. “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” Kennedy writes, adding that “the exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”
More importantly, Kennedy adds that “it is a general rule that [religious] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” So, religious conservatives who hoped for a sweeping victory allowing them to defy civil rights laws have little to celebrate today. The holding in Masterpiece is unlikely to extend very far beyond this individual case.
Kennedy decision in the baker’s favor rests in large part upon a handful of statements by Colorado’s civil rights commissioners, which, in his opinion, display “clear and impermissible hostility toward the sincere religious beliefs that motivated” Phillip’s objection to following the law.
One commissioner, for example, “suggested that Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’” The same commissioner stated that “if a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.”
Kennedy appears to be most agitated, however, by a longer statement made by another of the state’s civil rights commissioners:
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.
As a factual matter, this is an uncontroversial true statement. Indeed, the Supreme Court said something similar in Loving v. Virginia, its landmark racial marriage equality decision, when it rejected a Virginia judge’s conclusion that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents,” and that this geographic sorting shows that God “did not intend for the races to mix.”
Nevertheless, Kennedy is clearly deeply offended by this commissioner’s statement. “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use,'” the justice writes, “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 biggest lesson from Masterpiece, in other words, is that state officials need to mind their tongues when dealing with people who ground their prejudices in faith. It’s still kosher to enforce the law against such people, just so long as the state does so courteously.
One section of the Masterpiece opinion, it should be noted, does have potentially troubling implications for future civil rights cases. Colorado’s law doesn’t just prohibit discrimination on the basis of sexual orientation, it also prohibits discrimination based on “creed.” As Kennedy notes, “on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text.” And, in each case, “the Division found that the baker acted lawfully in refusing service.”
At one point, Kennedy’s opinion implies that this decision to treat pro-gay and anti-gay bakers differently could amount to unconstitutional viewpoint discrimination — a big no-no under the First Amendment. Later in the opinion, however, Kennedy seems to walk back this claim.
Among other things, Kennedy notes that the state used harsh words to describe anti-gay sentiments — “derogatory,” “hateful,” and “discriminatory.” According to the Court’s opinion, “a principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness.”
So once again, Kennedy’s real objection appears to be the fact that Colorado wasn’t nice enough to conservative Christians when it enforced its civil rights laws.
Masterpiece, in other words, is a loss for civil rights. But it is a very small loss, and it is unlikely to have many implications for future cases. State officials are now on notice that they have to be very polite to the Christian Right in future, similar cases. And they will find ways to speak gently as they enforce their laws.