Double-minded Supreme Court leaves door open to religious discrimination

Siena Hoefling
June 6, 2018

It was a decision that tossed a crumb to religious liberty with one hand, while it took the whole cake away with the other.

The “cake-baker case,” properly called Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, convinced conservatives they had won a battle in the culture war.

But, contrary to widespread belief, the decision did not close the door on religious discrimination. Quite the opposite: the decision ended favorably on a technicality for the individual baker alone, and encouraged states to make new laws to hamper future religious freedom claims.

The Supreme Court held that the baker acted reasonably “at the time,” because the controversy began in 2012, before Obergefell v. Hodges. To accommodate its hijacked changes to the political landscape, the Court in Cakeshop said states were free to enact laws that grant “gay persons” (a newly-crafted fictional term) “whatever products and services they choose on the same terms and conditions as are offered to other members of the public,” no matter religious objections.

“The laws and the Constitution can, and in some instances must, protect gay persons and gay couples” – another fictional term – “in the exercise of their civil rights,” wrote the Court. Religious objections are protected only in “some instances.” What these instances are, the Court declined to detail, except to say that the right to refuse to bake a cake on religious grounds was not among them.

“The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws,” the majority declared.

Not only does this judicial attitude leave every cake-baker vulnerable, it conceivably extends the arm of government to intrude upon the religious claims of any person or entity imaginable, even churches. For example, a state law could require churches to provide same-sex marriage rites – and that would be fine with SCOTUS, so long as the law was forced upon all churches, equally. Such is the doctrine of Cakeshop.

Conservatives should have been wary when they noticed that Cakeshop was written by Anthony Kennedy, author of Obergefell. Kennedy would have no conceivable inclination to walk back his own precedent, only to enlarge it. Predictably, his reasoning in Obergefell was expanded upon in Cakeshop, to the extent that it secured the support of Elena Kagan, one of the farthest-left justices in history.

No wonder the liberal Washington Post editorial board called Cakeshop “a step in the right direction.”

While conservatives welcomed a Trojan Horse gift into their camp, the Post noticed the decision “laid the foundations for a more ambitious ruling in the future.” The ambition it had in mind, of course, was to further diminish the role of traditional marriage and religion in society.

The Post applauded Cakeshop for siding with the judicial myth that the U.S. Constitution requires governmental “neutrality” toward religion. To have that extra-constitutional concept celebrated by conservatives is an important gain for liberals. In embracing Cakeshop, advocates for religious liberty are tricked into endorsing the invented doctrine of Sandra Day O’Connor’s “endorsement test” and the 1971 “Lemon Test,” which provide the basis for removing the Ten Commandments from the public square.

Conservatives missed it, but the Post understood that any religious victory in Cakeshop was limited to this particular cake-baker, and was of no use to religious liberty in general. Observed the Post: “Mr. Kennedy warned that the court could not, in the future, rule expansively in favor of a baker’s religious claims.” Indeed, the Court recognized no broad right to religious objection, because to do so, said the majority opinion, would “impose a serious stigma on gay persons” and impermissibly deny them marriage-oriented goods and services (including marriage rites?) for “moral and religious reasons.”

What this means is that, as far as the Supreme Court is concerned, your religious liberty had an expiration date of June 26, 2015.

© Siena Hoefling