The Supreme Court handed down its long-awaited ruling in Masterpiece Cakeshop v Colorado Civil Rights Commission (CCRC), where a bakery asserted both a free speech and free exercise of religion right to refuse to make a cake for a gay wedding. But in a rather odd 7-2 decision, they didn’t actually accept either of those rights as central to the case, ruling instead that the commission showed anti-religious bias in considering the case when it came before them.
The ruling was written by Justice Kennedy, of course; he has been the author of every major decision involving anti-gay discrimination since he joined the court in the late 80s. And he’s been on the right side of every one of them so far, but in this case he joined the court’s four more conservative justices and two liberal justices, Breyer and Kagan, in issuing a very narrow ruling based on the motive or intent of two of the members of the CCRC. And that raises all kinds of issues.
What the ruling explicitly did not do was to just blithely accept the premise that a “sincerely held religious belief” gives one an exemption from anti-discrimination legislation, or any law that is neutral and generally applicable. Instead, Kennedy says, the commission did not give the baker, Jack Phillips, the “neutral and respectful consideration of his claims” that he was due because “some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.”
“The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed,” Kennedy writes. “But the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same.”
So let’s take a look at the statements from members of the CCRC that Kennedy deemed to be “hostile” toward Phillips’ religion.
The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.
That hostility surfaced at the Commission’s formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips’ case. At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner 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.” A few moments later, the commissioner restated the same position: “[I]f 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.” Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.
On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated:
“I would also like to reiterate what we said in the hearing or the last meeting. 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.”
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 antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.
That’s it. Those are the statements that Kennedy and the majority think show an undue hostility toward religion. But frankly, that’s nonsense. These are simple statements of irrefutable fact. Religion has been, and still is, used to justify discrimination. For that matter, it’s still used to justify slavery and genocide. The point the commissioner was making was rather obvious — that the mere fact that one claims to have, or actually has, a “sincerely held religious belief” that discrimination is justified does not actually justify that discrimination, nor should it give them a “get out of the law free” card.
Have we really reached the point where simple statements of fact that are absolutely undeniable are deemed hostile? Must we cover everything in euphemism in order to pass constitutional muster? For crying out loud, Kennedy has made much the same point in his pro-gay rights rulings, that religious beliefs, no matter how sincere, cannot be used to justify treating gay people as second class citizens and denying them equal rights. Indeed, that is the core of his first major gay rights ruling in Romer v Evans, which overturned a law in the very state being challenged here. And he based that on anti-gay animus.
And that raises the whole question of when it’s permissible for the Court to consider the motivations or intent of the governing body whose actions are being challenged. And this is one of those questions on which virtually everyone is a hypocrite (except me, for reasons I’ll explain momentarily).
Traditionally, conservative justices and legal scholars reject the notion that an improper motivation is grounds for overturning a law or enjoining an enforcement action that would otherwise be constitutional. Indeed, the Court will soon rule in the case involving Donald Trump’s travel ban from some Muslim countries and a core argument from the plaintiffs in that case is that Trump repeatedly stated his desire to discriminate against Muslims with that order. The government has responded by arguing that Trump’s statements on the campaign trail are irrelevant, if the policy itself if constitutional, his motivation or intention is irrelevant. And I will guarantee you that every single conservative justice on the court will agree with the government’s argument on that. And that will be a rather obvious contradiction with this ruling.
But liberals do it too. The liberal justices favor the use of the Lemon test in Establishment Clause cases, the first prong of which is that the law or action must have a clear secular intent. Evidence of religious intent is enough to overturn a law or to enjoin a practice and the court has used that prong to do so many times in the last 50 years. Another clear contradiction.
My position is that a clear intent to discriminate or violate the spirit of the Constitution should be grounds for overturning it, but that does not mean I agree with Kennedy here. I think Kennedy and the majority are flat wrong when they claim that those simple statements of undeniable fact about the long history of using religion to justify discrimination, slavery and genocide are evidence of anti-religious bias. It is proper to look at intent, but the intent here is clearly to protect the rights of LGBT citizens, something Kennedy agrees is entirely proper and has done so much himself to foster, against any attempt to shut them out of public accommodations, and that religion — the excuse offered by the person seeking to discriminate — does not and cannot justify an exemption from laws designed to do so.
I may well have more to say on this in the coming days, especially about Justice Kagan’s concurrence and the dissenting opinion as well. You can read the full ruling here. We will be discussing this case on the first new episode of the Culture Wars Radio podcast, which we will be recording on Wednesday.