The Supreme Court’s 7-2 decision on Monday upholding the right of a Colorado baker to refuse to make a wedding cake for a gay couple was not all bad news for the LGBTQ community, according to one legal analyst.
“Gay people, who were justifiably terrified that the case could undermine their right to equal service, get a reaffirmation of their ‘dignity and worth,’” legal analyst Mark Joseph Stern wrote in an essay in Slate.
But the decision also did not permanently settle the clash between LGBTQ rights and religious freedom, an issue that’s bound to continue dividing Americans and lead to future court cases on multiple levels.
Instead, the ruling in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission offered small victories for those on all sides of the issue, according to Stern.
Religious-liberty advocates got another expansion of the Free Exercise Clause, which has been championed by President Trump and his evangelical base, who don’t want to be forced into actions, like providing employees birth control, if it violates their religious beliefs.
Anti-gay activists were happy to get even a partial victory.
“In the end, Masterpiece Cakeshop barely resolves anything and doesn’t even touch the free-speech claim at the center of the case. Instead, it punts that question, leaving lower courts (and American society) to continue fighting,” Stern wrote.
The case centered on Jack Phillips, the baker who refused to make a wedding cake for Charlie Craig and Dave Mullins because he opposed gay marriage.
The couple took the case to the Colorado Civil Rights Commission, which referred it to a state administrative law judge, who ruled that Phillips had violated Colorado’s civil rights law.
The Alliance Defending Freedom, or ADF, the anti-LGBTQ law firm that represents Phillips, took the case to the Colorado Court of Appeals, which backed up the commission’s decision. The Colorado Supreme Court declined to hear an appeal, and the case wound up before the Supreme Court last spring.
In September, Trump’s Department of Justice sided with the baker, saying the state had violated his right to free expression.
“This little case was shaping up to become a vehicle that would finally resolve a cardinal question of constitutional law: whether or not the First Amendment’s Free Speech Clause could be used to undermine decades of nondiscrimination law and subject gay people to the constant threat of humiliation in the public marketplace,” Stern wrote.
But the Supreme Court decision did not address that question, focusing only on the question of free exercise.
Justice Anthony Kennedy in his opinion said the court found that the commission had denied Phillips that right.
“Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be — I mean, we — we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others,” Kennedy wrote.
“The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation.”
But Kennedy’s opinion also defended states’ authority “to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services.”
He also said that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.”
And he also said that religious objections “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
