Supreme Court Will Likely Continue Attack On Christians and Religious Liberty in Cake Baker Case
The Federalist reports:
The Supreme Court's decision on Jack Phillips and his Masterpiece Cakeshop is expected in the next two to three weeks. While the outcome could surprise us all, the result both sides of the political spectrum predict is a substantial win for the Left packaged as a favorable verdict for the Right.
That is, the court will rule "for" Phillips but against his cause.
The reason is pretty simple: Justice Anthony Kennedy is the swing vote, and in the oral arguments last December, his mind seemed made up. Kennedy knows that if Phillips' speech as a cake artist is protected, then the speech of creative designers of every kind in the wedding industry must also be protected.
"It means there's basically an ability to boycott gay marriages," Kennedy said, an outcome he made clear was not acceptable. "The problem for you," Kennedy explained to Phillips' attorneys, "is that so many of these examples-and a photographer can be included-do involve speech." Protecting such speech would be "an affront to the gay community," which Kennedy thinks is concerning, perhaps illegal.
At the same time, Kennedy is likely sensitive to the fact that Phillips has won his case in the courts of popular opinion, by a two-thirds majority. In the December oral arguments, Kennedy appeared to be exploring a clever legal loophole to escape this dilemma. Most likely, he will write a narrow fact-based decision that will leave the judicial framework that prosecuted Phillips in place, but excuse the baker personally from any further punishment, on the notion that some of the judges involved in Phillips' case were biased against religion.
Such an opinion would tend to leave folks like Phillips guilty by implication without forcing the court to explain, head-on, why Christian bakers are obligated to design cakes for same-sex weddings.
Does Sexual Orientation Really Compare to Race?
But obligated they would be, and the reason, whether SCOTUS records it or not, ought to be publicly examined. It begins with the following question: If Phillips' First Amendment rights allow him to break Colorado anti-discrimination law with respect to sexual orientation, then why couldn't somebody else do so with respect to race?
This question has dominated media arguments against Phillips, and was the issue for liberal justices during oral arguments. Justice Sonia Sotomayor harped on Newman v. Piggie, Justice Stephen Breyer brought up Ollie's Barbecue, and Justice Elena Kagan asked point-blank: "Same case or not the same case, if [Phillips] instead objected to interracial marriage?"
Of course, Phillips's attorney replied that was "a very different case" because the "objection would be based on who the person is, rather than what the message is." "Mr. Phillips," she explained, "is looking at not the 'who' but the 'what' in these instances."
To which Justice Neil Gorsuch replied, in arguably the most important question of the entire case:
"Well, actually, counsel, that seems to be a point of contention.
The state seems to concede that if it were the message, your client would have a right to refuse. But if it - the objection is to the person, that's when the discrimination law kicks in. That's footnote 8 of the Colorado Court of Appeals' decision.
I know you know this. So what do you say to that, that actually what is happening here may superficially look like it's about the message but it's really about the person's identity?".......................................Justice Gorsuch asked.
(Long discussion followed by last paragraph:)
Homosexual behaviors, including same-sex marriage, are no more inborn or immutable than Hindu veganism or Christian abstinence from "sodomy." A refusal to make two homosexuals a cake for a gay wedding, when paired, as Phillips' refusal was, with an offer to serve them in any other way, is not some sly strike at an individual for his identity. It is a good-faith objection to a practice, a doing which, as Gorsuch so aptly pointed out, is quite appropriately not the object of laws to protect being.