No Victory for
Religious Liberty

Masterpiece Cakeshop v. Colorado Civil Rights Commission is the latest Supreme Court intervention in the American culture war. Conservatives and progressives alike have grown accustomed to our nine delphic oracles issuing from the Supreme Court Building a cascade of opinions deeming one practice illegal, another local or state law unconstitutional, this reasoning preferable to that. In the process, the Court authoritatively redefines the terrain of conflict for us all.

The Court did precisely this yesterday. In a lopsided 7-2 ruling, the majority found in favor of the Colorado baker Jack Phillips, owner and operator of Masterpiece Cakeshop, in his claimed right to the free exercise of religion. But this opinion is not a victory for religious liberty. The Court majority ruled in favor of Phillips strictly on procedural grounds. The substance of his claim to refuse to bake custom cakes for same-sex weddings went untested. In fact, the balance of the five separate opinions filed by the nine justices strongly suggests that the next Masterpiece Cakeshop will not fare nearly so well.

Jack Phillips and his lawyers leveled two distinct arguments in appealing his original conviction for violating the Colorado Anti-Discrimination Act. The first argument asserted his First Amendment right to free speech. Phillips claimed that the creation and design of custom wedding cakes is an act of artistic expression protected by the Constitution, so that to force him by law to provide such a service against his will constitutes government-compelled speech. The second argument asserted Phillips’s First Amendment right to free exercise of religion. Phillips claimed that his sincerely held religious beliefs forbade him from endorsing same-sex marriage, and that the creation and design of a custom wedding cake would amount to just such an endorsement.

Contrary to the over-enthusiastic reactions of some cultural conservatives, the Court did not rule in favor of Phillips on either of these substantive grounds. Its opinion is based wholly on procedural wrongs committed by the Colorado Civil Rights Commission, wrongs that went uncorrected by the Colorado Court of Appeals. Writing for the majority, Justice Anthony Kennedy notes several derogatory comments about religion made by certain Commissioners hearing Phillips’s case. Kennedy clearly states that what is being violated here is Phillips’s entitlement to “neutral and respectful consideration” of his argument and a judicial process defined by “fairness and impartiality.” Because of the Commission’s “hostility” to religion, which was never corrected by higher Colorado courts, the process is tainted and the decision against Phillips is vacated.

Only profound naïveté can spin the majority decision as a victory for religious liberty. Consider the concurring opinion of Justices Elena Kagan and Stephen Breyer. Kagan writes that “Colorado can [emphasis added] treat a baker who discriminates on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground. But only, as the Court rightly says, if the State’s decisions are not infected by religious hostility or bias.” Kagan in fact lays out precisely the argument she and Breyer would welcome in a future case in order to find for a future government prosecuting a future wedding-cake dissident.

Next consider Kennedy’s own words. He says at least three times that finding for Phillips now is no indication of how the Court will rule on a similar case in the future. In his clearest statement, Kennedy admits that “it must be concluded that 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.” He does not say that he would have ruled in favor of Phillips even if such a careful weighing had been done. And in my view the evidence from the majority decision suggests that he in fact would not have done so. Though the great decider in all the Court’s most significant cases on homosexuality to date recognizes “the right of all persons to exercise fundamental freedoms under the First Amendment,” he pits this right against another: “the rights and dignity of gay persons,” the value of gay persons’ “dignity and worth,” the right to be free from “community-wide stigma” and from “serious stigma on gay persons.” Combine this language with Kennedy’s famous 2013 Windsor and 2015 Obergefell cases, which eliminated the federal Defense of Marriage Act and nationalized same-sex marriage, and the balance of Kennedy’s concerns seems to be clearly on the side of gay rights over religious liberty.

The dissenting Justices Ruth Bader Ginsburg and Sonia Sotomayor seem to agree. The very first line of Ginsburg’s opinion reads, “There is much in the Court’s opinion with which I agree.” The first paragraph goes on to quote four times substantive commitments to gay rights from Kennedy’s majority opinion, upon which she bases her dissent. That makes a future 5-4 decision against the next Masterpiece Cakeshop the most likely outcome. In that Chief Justice John Roberts signed on to Kennedy’s decision without adding any words of his own, even a 6-3 decision against religious liberty seems possible.

Colorado has no state-level Religious Freedom Restoration Act. In light of the failure of a proposed state RFRA to pass the state House of Representatives in each of the past three years, the chances of Phillips’s being allowed to persist in his practices is slim. The Masterpiece Cakeshop decision is not a win for religious liberty in America. As Justice Clarence Thomas notes, it is not even a comment on freedom of speech, which went wholly ignored in the majority opinion. Absent changes to the composition of the Court, the most plausible reading of the Masterpiece Cakeshop decision is as a harbinger of defeat.

Darel E. Paul is professor of political science at Williams College and author of From Tolerance to Equality: How Elites Brought America to Same-Sex Marriage.