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The Masterpiece Cakeshop Dodge Sets up an Epic Fight for the Next Supreme Court Vacancy

05 Jun 2018

Ilya Shapiro

There were many ways to slice Masterpiece Cakeshop: the
Supreme Court chose an exceedingly narrow cut that leaves all the big
questions for another day. While it’s gratifying that, by a 7-2
vote, the court reversed Colorado’s persecution of Jack
Phillips—the baker who had no problem serving gay people but
wouldn’t bake a cake for a same-sex wedding—it did so only on
the basis that the state commission that enforces
antidiscrimination law displayed overt hostility to religion and
treated secular refusals to bake religious messages differently.
That’s an unusual circumstance, and one not typically in play in
these wedding-vendor cases.

Indeed, the petition of a Washington florist who declined to
provide arrangements for a longtime gay client’s wedding, Arlene’s Flowers v. Washington, is
pending. With Monday’s narrow ruling, the justices can’t simply
send that case back to the state court for reevaluation, because
Monday’s rule of decision is fact-specific rather than announcing
some clarifying principle.

Even if they do (we should learn by Monday), all they could ask
of the Washington Supreme Court is to evaluate whether the state
showed any anti-religious animus in its proceedings against
Barronelle Stutzman. That perfunctory exercise would only buy a few
months until a renewed petition arrived back at the marble

The food fight over
Masterpiece Cakeshop shows how pivotal the next Supreme Court
vacancy will be.

That’s why this ruling is “narrow,”
effectively a ticket good for this confection only. You’re
simply not going to have too many cases where a government official
will, in a public hearing, liken orthodox Christian (and Jewish and
Muslim) beliefs about marriage to religious justifications for
slavery and the Holocaust. (I’m not exaggerating;
that’s why Justice Anthony Kennedy, who wrote the majority
opinion, was so upset with Colorado’s lawyer during oral argument.) Cynics may even say the
rule is now that legislators and bureaucrats may indeed punish
those whose views they don’t like, but only if they hide
their motives.

Still, there’s plenty of resonance with Kennedy’s
majority opinion in Obergefell v, Hodges, the case that
struck down laws that didn’t allow same-sex marriage. He
wrote then that “[m]any who deem same-sex marriage to be
wrong reach that conclusion based on decent and honorable religious
or philosophical premises,” just as he wrote now that
“gay persons and gay couples cannot be treated as social
outcasts or as inferior in dignity and worth.”

Regardless, all this talk of “animus”—the
flipside to Kennedy’s jurisprudence regarding the right to
“dignity”—ignores the bigger questions that
Masterpiece Cakeshop raised and aren’t going
anywhere. Is a decision not to work a gay wedding no different than
a decision not to serve gay people? Can an artistic or expressive
professional be compelled to produce something for an event he
disagrees with?

How do we decide what kinds of professions get that kind of
First Amendment protection? Does it matter whether the objection is
religious? Does it matter that, unlike the oft-invoked Jim Crow
analogy, gay couples can generally get cakes, flowers, and other
wedding products and services without having to travel too far?

All of these questions are left for some future case, when the
swing vote may belong to someone other than Kennedy. In that way,
this squib of a ruling—18 pages, most of which just recites
factual and procedural background—underlines how the battle
over the 81-year-old Kennedy’s successor will be, whenever
that happens.

On those big issues, when the Supreme Court is forced to
“go for it” rather than punting, we see a glimpse of
the playbook in the food fight among the concurring and dissenting
opinions. Justice Neil Gorsuch, joined by Justice Samuel Alito,
emphasized how striking it was that the commission applied
different standards and levels of definitional generality to
achieve different legal results based on the viewpoint at issue.
Justice Elena Kagan, joined by Justice Stephen Breyer, joined the
majority but took issue with Gorsuch’s characterizations and
argued that if one is in the business of making wedding cakes, one
must make such cakes for all weddings.

Justice Clarence Thomas, joined by Gorsuch, went into the
free-speech aspect that had dominated the briefing and commentary
(including mine) before argument, showing how Phillips was engaged
in expressive behavior whose constitutional protection can’t
be blithely undermined. “The First Amendment prohibits
Colorado from requiring Phillips to bear witness to these facts or
to affirm a belief with which he disagrees,” Thomas
concluded, citing the Hurley case, where the Supreme Court
ruled that a parade can’t be forced to allow all comers to

Meanwhile, Justice Ruth Bader Ginsburg, joined by Justice Sonia
Sotomayor, found even Kennedy’s milquetoast decision to be
over-yolked, seeing the commissioners’ anti-religious
statements as irrelevant to the resolution.

It’s a shame that, the superficial agreement in this
narrow ruling notwithstanding, Masterpiece Cakeshop split
the court—and the country—so sharply. After all, the
most basic principle of a free society is that the government
can’t willy-nilly force people to do things that violate
their beliefs. Some may argue that these wedding-vendor cases
present a conflict between religious freedom and gay rights, but
that’s a “false choice,” as a recent president
liked to say.

People have simply forgotten the distinction between state and
private action. There’s no clash of individual rights except
when the government itself declines to consistently protect
everyone. County clerks must issue marriage licenses regardless of
their personal beliefs, but bakers aren’t government agents
and so should maintain freedom of conscience.

Kennedy could’ve forestalled some of this mischief by
making clear in Obergefell that the Constitution protects
not just the right to “advocate” and
“teach” religion but also to “exercise” it,
and that regardless people on either side of the debate
shouldn’t be forced to convey messages they don’t like.
But he didn’t, so it’s left to the better angels of our
pluralistic nature to tolerate views and lifestyles we may not
like. And to fight like hell for judges who agree with that

Ilya Shapiro
is a senior contributor to The Federalist. He is a senior fellow in
Constitutional Studies at the Cato Institute and Editor-in-Chief of
the Cato Supreme Court Review.

Click here to view the full article which appeared in CATO Journal