Monday, June 4, 2018
The Cakeshop case: What the Court Did NOT Decide
BUT! And the BUT is the critical part of the case.
Listening to some commentators and some partisans this morning, it's doubtful they had actually read the Court's decision. Or maybe they have simply been characterizing the decision to fit their preconceptions or preferences.
The 7-2 decision, authored by Justice Anthony Kennedy, held--and only held--that Colorado's Civil Rights Commission was hostile to the baker's religious beliefs and thus did not give him a fair and neutral hearing. Period!
The Court did NOT decide that bakers may refuse to bake cakes for gays or lesbians or same-sex couples.
The Court did NOT decide that bakers may refuse to bake a cake for a same-sex marriage celebration.
The Court did NOT decide that bakers (or any other business) may violate a state's anti-discrimination law.
The Court did NOT decide that bakers (or any other business) may violate such a law even on religious grounds.
The Court did NOT decide that religious freedom outweighs the rights of gays, lesbians or same-sex couples.
The Court did NOT decide that exceptions to anti-discrimination laws must be made for religious objections.
The Court did NOT decide First Amendment religious freedom entitles religious objectors to exemptions from an anti-discrimination law--or any law at all.
The Court did NOT overturn its 1990 decision in Oregon v. Smith that any "an otherwise valid law" defeats religious objections.
The Court did NOT rule any of the foregoing ways on the basis of freedom of expression either.
And the Court certainly did NOT decide that discrimination or other unequal treatment of gays, lesbians, or same-sex couples in public accommodations was constitutionally permissible--for religious or any other reasons.
In fact, the Supreme Court actually reaffirmed that neither "religious [n]or philosophical objections...allow business owners and other actors in the economy to deny protected persons [which includes "gay persons and gay couples"] equal access to goods and services under a neutral and generally applicable public accommodations law."
In this case, the Supreme Court merely found that the determination of the Colorado commission against the baker was not "neutral." In terms of the Court's 1990 Oregon v. Smith precedent, that Colorado determination was not "otherwise valid" because it unlawfully assessed the baker's religious belief as illegitimate and subjected it to ridicule. In the Supreme Court's own words, the Colorado commission "disparage[d]" the baker's religious faith "by describing it as despicable, and also characterizing it as merely rhetorical--something insubstantial and even insincere."
The Court made clear that Colorado's anti-discrimination "interest could have been weighed against [the baker's] sincere religious objections in a way consistent with the requisite religious neutrality." But that, instead, the Colorado commission treated the baker's beliefs with contempt and consequently failed to conduct a fair hearing.
For that reason the Court sided with the baker in this case.
NOT because religious objections to same-sex marriage outweigh the equal rights of same-sex couples to goods and services in the marketplace.