I just read the SCOTUS decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission and I have to say, Justice Ginsburg’s dissent—though disingenuous on numerous points—is more logically consistent than the majority opinion. The fact is, gay marriage cannot, and was never meant to coexist with the free exercise of religion. “Well if your stupid Flying Spaghetti Monster wasn’t such a goddamned bigot….” I rest my case. (See also: “Real Jesus loves everybody just the way they are.”)
But Masterpiece is not actually a victory for religion, or the free exercise thereof. All this case does is differentiate conscientious objection from actual freedom. It’s a protracted religious test at the behest of scorned, chubby poofters, with the result that only the inscrutable fig-leaf of religion at its most passive and irrational now merits a carve-out, so long as you can satisfy a roulette wheel of vindictive bureaucrats that it’s all just in your head; whereas a straightforward moral rationale against the enfranchisement of sexual deviance would never, on its face, have stood a chance here. With Obergefell, such uncomfortable questions about public morality were effectively rendered hypothetical, merely philosophical, historical curiosities. With Masterpiece, they’re now conveniently quarantined (unlike AIDS.)
Of course, like killing a fetus, the scope of the Court’s purview is procedural, not moral. So: does a retailer have a right to inquire what I intend to use his product for, as a prerequisite of doing business? If so (a big “if”), does he have a right to refuse if he dislikes my answer? That depends. In Masterpiece, Phillips (the baker) was presumably being asked to include some message (“Congratulations Adam and Steve,” a couple of little plastic grooms, etc.) That would be compelled speech, a matter the Court already settled in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston. But that’s not the issue this decision focuses on. Rather, Masterpiece is about whether Phillip’s religious beliefs were duly taken into account by the Colorado Civil Rights Commission (boy, that sure sounds like an impartial body, doesn’t it?)
Indeed, the inverse case cited by Philips’ attorneys—of one William Jack, a hellfire-and-brimstone Okie from Muskogee who submitted complaints to the Commission against three separate bakers for their respective refusals to decorate cakes for him with biblical verses condemning homolingus—is a bad analogy to Masterpiece, because in the latter case, the Commission was considering (or refusing to consider) a religious exemption; whereas, in the former three cases, it was compelled speech that was the issue.
But according to the majority, there was another problem with the way speech was treated by the Commission:
The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism.
This is highly telling, and Ginsburg doesn’t really have a rebuttal, so she ultimately addresses another difference between the two cases, one that’s more pliant to her purposes:
The different outcomes the Court features do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below.
The first half of that sentence seems to me factually sound. But there are two problems here. First, Ginsburg comes very close to saying that the Commission’s rationale is irrelevant. Secondly—of course the different outcomes do not evidence hostility to religion per se. Rather, the peculiar way Phillips’ case was adjudicated evidences hostility to his religion in particular. Obviously, the “love-wins” Unitarian community did not file an amicus brief in support of Masterpiece Cakeshop. Neither is Phillips alleging that the Commission’s ruling implied disapproval of Reform Jews, androgynous Episcopalians, or anglo-Buddhist hot-tubbers. In fact, the notion that a ruling against Phillips would compromise such peoples’ rights, even just in principle, involves quite a stretch of the imagination. So the Court’s decision necessarily grants “religion” a wide berth because otherwise, we persons of Sodom might have to acknowledge what religion actually is, and this here ain’t America if you can’t have your cake and eat it, too.
In any case, the comments Ginsburg is referring to are treated more seriously by the majority:
As the record shows, 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. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.
A lot hinges there on the word thus, and Ginsburg’s dissent sidesteps and downplays most of it. But she’s right that a carve-out is being created here for discrimination on the grounds of sexual orientation, and to that extent her dissent has greater rhetorical force and logical consistency than the majority opinion.
Ultimately, however, the Masterpiece decision does not merely create a carve-out for religious discrimination against gays. Rather, it creates a carve-out for religious discrimination against gays that affirms the otherwise wholesale banishment of religion from public life; an exception that proves the rule.
Colorado, the Court does not gainsay, prohibits precisely the discrimination Craig and Mullins encountered. Jack, on the other hand, suffered no service refusal on the basis of his religion or any other protected characteristic.
Again, William Jack wanted a cake with anti-homosexual Bible verses on it; three bakers refused, and were vetted by the Commission. They should no more be compelled to make him a cake than Phillips should be compelled to provide one for Craig and Mullins’ wedding. But if objection to decorating a cake with biblical verses on it—on the basis of what those verses say—isn’t “refusal on the basis of religion,” I don’t know what is. And that’s not a carve-out that will ever require defending before the Supreme Court. On the other hand, the carve-out that Masterpiece provides for is tenuous, and remains open to challenge: Jack Philips is being allowed to discriminate not on account of his sincerely held beliefs, but because those beliefs were belittled and not taken seriously prior to being rejected by the Commission.