DANIEL VAUGHAN: Masterpiece Cakeshop decision leaves unanswered questions

June 8, 2018

Broadly speaking, as a 7-2 decision, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission was a critical case that reaffirmed essential protections for the Free Exercise Clause of the First Amendment.

Expressly, the case reaffirms Constitutional protections that prevent state agencies from discriminating against those with sincerely held religious beliefs.

And while that is an outstanding line to draw, especially in pushing back against state commissions with anti-religious dispositions, the case doesn’t answer the much larger question: Can bakers — or other similarly situated artists — be forced to convey pro-homosexual speech against their will?

This question surrounding compelled speech — and whether or not any of this is compelled speech — went unanswered.

But even though the case is limited in its scope of pushing back against bigoted state commissions on that front, it is a fantastic opinion by Justice Anthony Kennedy. There’s a reason the case was decided 7-2 on this front: because the Colorado Civil Rights Commission engaged in what can only be called religious bigotry.

And no one in the state of Colorado or appeals courts, according to the court record, bothered to step in and prevent outright religious discrimination.

The first example of this, as Kennedy notes in his opinion, is an instance in which a commissioner claimed that Jack Phillips, the owner of Masterpiece Cakeshop, could believe what he wanted, but if those beliefs came into contact with his business, he’d have to take his company out of the state.

At a later hearing, another commissioner compared Phillips’ faith to that of slavery and Nazism.

As Kennedy points out, this level of antipathy toward religion is unacceptable:

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 anti-discrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation.

Constitutional law prohibits courts and states from attacking the sincerity or validity of any one person’s faith. The courts had never seen it as their duty to start refereeing the boundaries of what does and doesn’t constitute acceptable or sincere belief.

By stating Phillips wasn’t free to run his business according to his religious principles, the state was effectively saying that Phillips couldn’t freely exercise his faith.

That is a despicable stance for a commission that’s supposed to be neutral toward all religions.

Where the Masterpiece Cakeshop case stops short, however, is in addressing whether or not bakers like Phillips can be compelled to create cakes that espouse views contrary to their faith, either on Free Exercise or Free Speech grounds.

It’s on that basis that Justices Gorsuch and Thomas argue for Phillips in their concurrences, and Justices Breyer and Kagen argue against Phillips. This split effectively sets the stage for the inevitable round two in this legal debate.

Meanwhile, Ginsburg and Sotomayor spent their time in their dissent trying to argue (ineffectively) that the Colorado Commission did nothing wrong.

But round two is coming in the compelled speech vs. gay rights cases sooner or later. Arlene’s Flowers vs. Washington, which questions whether a florist can be forced to create unique and artistic arrangements for same-sex weddings, is currently headed to the court.

On a similar front, National Institute of Family and Life Advocates v. Becerra is currently challenging California’s requirement that crisis pregnancy centers (most of which are religious) post notices in their clinics on how to get low-cost abortions.

Luckily, there’s no Colorado Commission with flagrantly anti-religious statements that would allow the court to sidestep the real argument in either of those cases.

In short, the Supreme Court found an easy out in dealing with the real issues in the Masterpiece Cakeshop case. That’s not the end of the story, however, and more and more blue states are using the law to force private citizens to espouse speech that goes against their personal beliefs.

Justice Thomas argued as such in his concurrence:

Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the free­dom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.”

And that’s the question left unanswered by Masterpiece Cakeshop: Can this new progressive orthodoxy use Obergefell to grant the government new powers to stamp out all forms of dissent, religious or secular?

It looks like we’ll be finding out soon.


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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.