By Bob Smietana
A day after the U.S. Supreme Court ruled in his favor, Jack Phillips still won’t bake you a custom wedding cake.
“Masterpiece Cakeshop is not currently accepting requests to create custom wedding cakes,” says a statement on Phillips’ website. “Please check back in the future.”
That phrase, “Please check back in the future,” sums up reactions to the Supreme Court’s ruling.
The court ruled the Colorado Civil Rights Commission showed hostility to Phillips’ Christian faith when it punished him for refusing to make a wedding cake for a same-sex couple.
Justices said Phillips should have gotten an impartial hearing. And they said the baker—and the same-sex couple who came to his shop—deserved protection from discrimination.
But they didn’t resolve the central question in the case: Does the law require Phillips to bake the cake?
The answer to the question may not come for a long time, says John Inazu, a professor at Washington University Law School.
“The court’s jurisprudence means that we’re going to have state-by-state norms that vary quite a bit … about what counts as protections for religious freedom,” he told NPR this week.
Meanwhile, people on both sides of the case see positives in the ruling.
Joe Carter, writing for the Ethics and Religious Liberty Commission, says the court made it clear that the government has to give religious beliefs a fair shake.
He wrote, “the Court reiterated, as Justice Kagan says, that ‘state actors cannot show hostility to religious views; rather, they must give those views “neutral and respectful consideration.”’”
David French, a constitutional lawyer, says the ruling shows that tolerance “is not a one-way street.”
The court, says French, ruled that the civil rights commission punished Phillips for not making a same-sex wedding cake—but did not punish other bakers who refused to make cakes that criticized same-sex weddings.
This ruling puts both messages on equal footing, thanks to Justice Anthony Kennedy, says French.
“The Lord works in mysterious ways, and it is no small irony that the same justice who just struck a blow for the dignity of the faithful is also the man most responsible for creating the constitutional right to same-sex marriage,” he wrote in the National Review.
Virginia University Professor Douglas Laycock and Douglas Berg of the University of St. Thomas argued that Phillips and same-sex couples can both be protected under the law.
“The court can protect Phillips without creating any problematic holes in nondiscrimination laws,” they wrote in an op-ed for the Daily News.
“His objection is limited. He claims no right to refuse to serve gays and lesbians generally, only the right to refuse to help celebrate the wedding. The wedding context not only intensifies the religious nature of Phillips’ objection, it also diminishes the state’s regulatory interest, because the wedding happens only once.”
The American Civil Liberties Union, which supported Dave Mullins and Charlie Craig, the couple who asked Phillips to bake them a wedding cake, also seemed to praise parts of the decision.
James Esseks of the ACLU says the court showed same-sex couples deserve protection.
The ruling showed “the court didn’t decide that any business has a right to discriminate against customers because of who they are,” wrote Esseks.
Scott Lemieux, a politics professor, worries that the ruling could undermine discrimination laws.
“There remains the possibility that this apparently narrow ruling will help conservative courts significantly undermine the enforcement of critical civil rights statutes,” he wrote.
David Cole, national legal director of the ACLU, represented Craig and Mullins. He said his side won a battle but lost the war.
Cole acknowledged that the civil rights commission called Phillips’ religious objections “despicable.” But he says that didn’t show hostility to religion.
“‘Despicable’ was an unfortunate choice of words,” he wrote in the Washington Post, “but the commissioner’s statement that one cannot invoke religion to harm others is actually black-letter constitutional law, as is the notion that one cannot invoke religion to avoid complying with a general rule requiring businesses not to discriminate.”
Points of disagreement
One problem with the Masterpiece Cakeshop case: The facts were complicated.
“It was obvious at oral argument in December that the case had what Supreme Court insiders call “vehicle problems”—meaning that the facts and the record did not clearly tee up the issue the parties were seeking to resolve,” wrote Garrett Epps, a contributing editor at The Atlantic.
Even the judges, says Epps, could not agree on what the case was about.
Did Phillips refuse to create a work of art for the couple? Did making a cake for the couple mean he supported same-sex weddings?
Or did he just refuse to sell them a cake?
“One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service,” the court acknowledged in its ruling. “If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defining whether a baker’s creation can be protected, these details might make a difference.”
Justice Kennedy, who wrote the majority opinion, seemed to think the case was about something bigger than selling a cake.
Kennedy seems to believe that for Phillips the case involves the message the cake sent—not discrimination. State law in Colorado in 2012—when the encounter between the couple and the baker took place—gave business owners more leeway to reject messages with which they disagreed.
“Given the State’s position at the time, there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful,” he wrote. “State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive.”
Justice Elena Kagan, who voted in favor of Phillips, thinks the case was about selling cake. And she argues that the baker discriminated against the couple.
“A vendor can choose the products he sells, but not the customers he serves—no matter the reason. Phillips sells wedding cakes,” she wrote in a footnote to her concurring opinion. “As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis—which has nothing to do with Phillips’ religious beliefs—Colorado could have distinguished Phillips from the bakers in the [William] Jack cases, who did not engage in any prohibited discrimination.”
In those cases, the Colorado commission found no discrimination when three bakers refused to make cakes with messages they considered derogatory for a customer named William Jack.
Phillips may not be the last baker to end up at the Supreme Court.
Last month, a California judge ruled that a baker there did not have to make a custom cake for a same sex-couple.
According to the judge, the baker had to sell already-made cakes to anyone who walks in the door. But the baker could refuse to bake some cakes—including cakes that celebrated divorce or a same-sex wedding.
That decision will likely be appealed.
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- Growing Share of Evangelicals Support Same-Sex Marriage
- When Sex and Religion Conflict, What Should Win?
BOB SMIETANA (@bobsmietana) is senior writer for Facts & Trends.