The Supreme Court is Wrong and What I’m Doing About It

The Supreme Court is Wrong and What I’m Doing About It June 5, 2018

On Monday the United States Supreme Court ruled in favor of Masterpiece Cakeshop in their denial of service to a same sex couple. While this ruling is disappointing, it is far narrower than either its supporters or its detractors are claiming. It is not carte blanche to discriminate against gay people on religious grounds. Still, it represents a step in the wrong direction, and there are things we can do to respond.

This wasn’t a simple case

This wasn’t a case of “we don’t serve your kind in here.” The owner of Masterpiece offered to sell the couple in question any other products he makes: cookies, brownies, birthday cakes, etc. He drew the line at wedding cakes, because he believed that creating a cake for a same sex wedding was tantamount to endorsing same sex marriage, which his religion forbids.

United States religious freedom laws are broad, and rightly so. Among other things, they protect Pagans and other members of minority religions from discrimination – at least when they’re properly enforced. The law sets a very high standard for forcing someone to do something at odds with their religion.

But the law also demands equal treatment in public accommodations. When there are conflicts between “free exercise” and “equal accommodations” then choices must be made. Sometimes those choices are easy – no minister is compelled to officiate a wedding they believe is invalid or otherwise wrong. On the other hand, Masterpiece clearly would have been in violation of the law if they refused to sell cookies off the shelf to a gay customer.

Where does the baker of a wedding cake fit into this scheme? What about the florist who decorates the wedding site? When do you stop being a vendor and start being a participant?

The case was decided on very narrow grounds

As with all controversial cases, I strongly encourage you to read the Supreme Court’s decision for yourself. The majority opinion (a 7-2 decision – I expected 5-4) was written by Justice Anthony Kennedy. He also wrote the majority opinion in Obergefell v Hodges, which legalized same sex marriage nationwide three years ago.

When the same sex couple was denied service, they filed a complaint with the Colorado Civil Rights Commission, who ultimately ruled in their favor. But during the hearings, two members of the commission completely dismissed Masterpiece’s religious arguments and expressed hostility toward that argument.

In his conclusion, Justice Kennedy wrote:

The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided …  for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.

The Supreme Court did not say bakeries can refuse service to same sex couples. The court said Masterpiece didn’t get a fair and unbiased hearing.

Justice Kennedy made it clear the broader issue is far from settled.

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

Dangerous concurrences and a proper dissent

In addition to the majority opinion, there were three concurring opinions and one dissent. Justice Elena Kagan agreed that Masterpiece was not treated fairly, but disagreed with some of the logic used to arrive at that decision.

New Justice Neil Gorsuch agreed with the majority’s decision, but made it clear he believes baking a wedding cake is equivalent to participating in the ceremony and thus Masterpiece should have won on the facts, not on the process failure. Justice Samuel Alito joined his opinion. Justice Clarence Thomas went even further, claiming that refusing to bake a cake for a same sex couple is a question of free speech. This is a dangerous line of reasoning that opens to door to widespread discrimination in the name of religious “freedom.”

Justice Ruth Bader Ginsburg dissented. Essentially she refuted Justice Gorsuch’s concurrence – a wedding cake is a cake and equal accommodation is required.

What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.

Although I sympathize with the baker who believes he was asked to do something against his religion (no matter how wrong I think that religious belief is) at the end of the day Justice Ginsburg is right. Baking a cake – even a very creative cake – isn’t being part of the ceremony. He’s a baker, not a priest. If you do business with the public, the law requires that you do business with all the public.

Kicking the can down the road

The Supreme Court could have settled this – one way or the other. Instead, they kicked the can down the road, no doubt hoping that public opinion or legislative action will take care of it. That’s fantasy. While public opinion on LGBTQ issues has moved quickly by historical standards, it’s still moving slowly, and justice delayed is still justice denied. And our legislatures – especially the US Congress – are mostly incompetent. The Supreme Court will see this again sooner or later.

For those who say “it’s just a cake, find someone else” – it’s not that simple. I’m a straight, white, cis-man – there aren’t many places where my money isn’t welcome. But I’ve run into a few over the years. It feels like crap. I can’t imagine how it must feel to go into a place all excited about planning your wedding, only to be told “go away – I think what you’re doing is a sin.”

So if we aren’t going to enforce anti-discrimination laws, the least we can do is make sure everyone knows where they are and aren’t welcome before they walk in the door.

Let wedding vendors pick and choose among their customers if they like. But require companies like Masterpiece Cakeshop to post a notice on their doors and on their websites that say “we serve straight couples only” and then let the free market take it from there. Or just make it commonplace for inclusive vendors to post notices that say “love is love – we serve everyone.” Weddings tend to be a young people’s thing, and young people tend to be more inclusive than older folks. That won’t fix the problem, but it will make things better, and better is good.

What I’m going to do

As an ordained priest, I can legally officiate weddings in Texas and several other states. It’s not something I do often, but I’ve done it before and I’ll do it again. Going forward, I have a new requirement for couples who want me to officiate their wedding. I’m going to insist that they verify that all their wedding vendors – venues, bakeries, florists, printers, everyone – don’t discriminate and will serve everyone.

That will be easy for same sex couples – if they’ll serve you, it’s a safe bet they’ll serve everyone else. It will be a little more work for straight couples. I can’t imagine that anyone who wants to be married by a Druid would want to patronize a business that discriminates, but you might not think to ask. I’m going to insist that you ask. It’s the least we can do to help our LGBTQ friends enjoy the same opportunities the rest of us do.

Changing a culture is hard

Obergefell was a great thing, but it wasn’t the end. Faced with a clear choice in the wedding cake case, the highest court in the land punted. We see more and more “religious liberty” bills that are nothing more than thinly disguised licenses to discriminate. And the bathroom bills and other attacks on transgender people keep coming.

Sometimes cultures change because people can learn and grow and change. Other times cultures change one funeral at a time. We’re doing a little bit of both in this country. We aren’t going to kill people who disagree with us and we don’t want to wait for them to die off, so we need to do our best to change hearts and minds where we can, and to constrain those who would harm others where we can’t.

Carefully choose where you spend your money. Don’t let bigoted remarks go unchallenged, even if it’s from your dear old grandfather who just doesn’t know any better – lots of grandfathers know better. Protest and resist discriminatory legislation.

And for the love of all the Gods, vote!

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