Supreme Court’s Christian Baker Opinion Is No Win For Freedom Of Religion

The U.S. Supreme Court rendered its opinion on a highly anticipated case regarding the right of a baker to refuse to design and create a wedding cake for a gay marriage ceremony based upon his religious convictions. However, for the SCOTUS, this appears not to be a case of religious freedom, but one of unjust government discrimination.

Jack Phillips, a practicing Christian, often refused to design and create baked goods based upon his religious beliefs. His store was closed on Sundays and other Christian holidays, he refused to create or design desserts for Halloween, and he refused to make desserts that contained alcohol. Phillips did not refuse to serve the same-sex couple who later filed a complaint. He only refused to design and create a cake for their wedding. He remarked that he would be happy to design and create cookies, birthday cakes, shower cakes, or brownies — just not a wedding cake due to religious objections.

The same-sex couple filed a complaint with the Colorado Civil Rights Commission and the commission, after several hearings, decided that Phillips violated Colorado’s public accommodation laws by refusing to create and design this wedding cake for the same-sex couple. The Colorado commission did not accept Phillip’s defense of religious conviction.

Members of the commission, on record and as justification for their decision, mocked Phillip’s beliefs and compared his religious convictions to slavery and to the Holocaust. The Supreme Court found in favor of Phillips in a 7-2 opinion, based particularly on the statements of the Colorado commissioners.

There are some very significant points that must be made to clarify this carefully written opinion. Because of the great public anticipation over this case, there will be a tendency to make more of what was said than was actually said, and mischaracterize the magnitude of this decision.

Not a Matter of Freedom of Religion The court did not render its opinion on the basis of religious freedom. They did not declare that private business owners are free to discriminate based upon religious beliefs. As a matter of fact, they said the opposite.

“It is the general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and public services under a neutral and generally applicable public accommodations law.” (Page 9)

“Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” (Page 10)

Phillips made multiple statements asserting his refusal to make the cake was based upon religious conviction. However, it seems the Court only references these objections for the purpose of condemning the Colorado commissioners’ apparent discriminatory statements voiced against Phillips. This Court never asserted that Phillips was justified in his refusal based upon his right to religious freedom.

It is not clear that this is an overall victory for private business owners or Christians to publicly maintain their convictions.

Clergy Cannot be Compelled The court took time to clarify that it should be “assumed” that “when it comes to weddings”, “a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform that ceremony without denial of his or her right to the free exercise of religion.” (Page 10)

It’s interesting that the Court feels that it should be obvious and therefore not questioned that a professional clergy maintains full right to expression of their freedom of religion, but a baker does not. It would seem that the court sees the possession and expression of fundamental rights like freedom of religion as inherent in a profession rather inherent to all persons.

It’s Not Freedom of Religion, It’s Freedom from Discrimination This Court did not declare that Phillips’ personal objections justified his refusal to bake this cake. Instead they took a safer and more politically correct approach by finding that the Colorado commissioners’ statements applied the Colorado public accommodation law in a discriminating and biased manner.

The Court says “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.” (Page 3) However, the government cannot use Phillips’ religious beliefs as the basis for the application of their laws.

Justice Kennedy points out that when commissioners on the Colorado commission made statements describing Phillips’ faith as “one of the most despicable pieces of rhetoric that people can use,” and equating his refusal to design and create a wedding cake for a same-sex marriage to the acts of slavery and the holocaust, they began down the path of discriminating against him. In addition to these condemning statements, the Colorado commission had, at the same time, determined that three other bakers could refuse to bake cakes critical of gay marriage, contrary to their secular convictions, making clear their bias and discriminatory application of this otherwise “neutral” law.

The majority opinion determined that it was this discriminatory act by the Colorado commission that required the court to overturn this case. Again, for the majority opinion, this appears not to be a case of religious freedom of expression, but one of unjust government discrimination.

Gay Marriage Was Not Legal Yet The Court, almost in passing, also mentioned that Phillips’ may have been justified in his refusal to design and create this wedding cake, because Colorado had not legalized gay marriage yet. His refusal, at that time, was not only in compliance with State law, but also a refusal to participate in an illegal activity. Perhaps Kennedy added this point of fact as a way of publicly saying to business owners in States who have legalized gay marriage, you have no argument to withhold your services if State law compels service.

What About Freedom of Speech? There is one aspect of personal rights the majority opinion mentions but strangely never fleshes out: the matter of freedom of speech.

The majority court introduces the question: Is the government’s law forcing Phillips to design and create a cake contrary to his personal message, a violation of freedom of speech? But then, in what seems to be a lapse of concentration, the majority opinion never answers this question definitively. It isn’t until we get to Justice Thomas’ concurrence that we find a truly worthy discussion of this important element.

Thomas’ opinion on the matter of freedom of speech is so thorough and so supported by precedent it makes one wonder why the majority court refused to give this topic its due consideration. Justice Thomas points out that it is well within the history of the Supreme Court to support the expression of offensive beliefs in the name of freedom of speech. After all, he reminds us, if the burning of a flag or a 25-foot cross (Virginia v. Black), or designing and creating “a film featuring Klan members brandishing weapons and threatening to ‘Bury the niggers,’ (Brandenburg v. Ohio) are all protected speech, then surely designing and creating a cake ought to fit these categories as well.

By the terms laid out by Justice Thomas, this case should have absolutely been decided in favor of Phillips on the merits of freedom of speech. Why the majority court would introduce this element, and then not complete its thought on the matter is puzzling. Why the majority court would choose a single justification for their opinion when they could have had two compelling arguments is equally puzzling.

The Dissent One final matter worth discussing is the dissent written by Justice Ginsburg, joined by Justice Sotomayor. Not surprisingly, Ginsburg feels that this case should have been decided in favor of the same-sex couple. However, her argument against the majority opinion is so weak it makes clear her bias.

She does not address the fact that gay marriage was illegal at the time Phillips refused to design and create the cake. She does not even broach the freedom of speech aspect. Instead she asserts that the biased statements of a few commissioners against Phillips, during a government hearing in judgment of Phillips, do not rise to the level of “hostility” toward Phillips and therefore cannot be the justification for overturning this case.

Apparently, Ginsburg believes in a lower standard of discrimination for government than private citizens by claiming that these clear and impermissible words of hostility placed on the record by members of the commission and used as justification for their decision were not an exercise of content discrimination, yet the baker refusing to make a wedding cake for a gay marriage, that was currently against the law, and violated his religious beliefs, was discrimination.

The Court has no constitutional authority to interfere with these affairs of the State of Colorado which is up to the people of Colorado to decide. Tyranny will end up killing you and unconstitutional federal acts and decisions are tyranny.

The ONLY "government" the First Amendment points to is the Federal government, NOT state government.

CONGRESS shall make no law...prohibiting the free exercise... Amendment I.

The First Amendment is pointed DIRECTLY at the feds and NOWHERE else.

The Court really botched this. It should have ruled that persons cannot be forced to PARTICIPATE IN a gay marriage. Period.

Selling a cake to gays is much different from creating one for them. Selling a roast beef is much different than attending the reception and carving it.

Very easy standard to establish and protects the rights of all persons.

Interesting analysis.

So it seems that Colorado Civil Rights commission is either going to have to allow Phillips to refuse to bake the cake based on his religious values or its going to have to require the other bakers to bake the cakes with statements derogatory to gay marriage despite their secular values.

Clearly they did not want to issue a landmark ruling on this subject. So they decided on some narrow procedures involved.

I’m no court expert by any means, but, I understand the supreme Court members do some deliberations on cases, to get a sense of where people stand. If that happened here, then they likely found they didn’t have the votes to issue a sweeping ruling. But they had the votes to issue a narrowed ruling on procedural issues.

All state constitutions include freedom of speech and religion. For instance, Colorado:

Section 4. Religious freedom. The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness or justify practices inconsistent with the good order, peace or safety of the state. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship.

Section 10. Freedom of speech and press. No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.

The Court didn’t have lawful right to meddle in the laws of Tesas either, compelling us to assert perverted acts as lawful.

Nor in the matter of same sex abominamarriages.

Nor in Roe v Wade and so many other things.

In response to this pathetically weak ruling, Colorado will:

Allow bakers to refuse to bake anti-gay cakes: “Persons cannot be forced by the state to engage in hate speech”.

Continue to require bakers to create cakes for homosexual weddings: “It is discrimination to deny services to persons based on sexual orientation. Providing equal service to all members of the general public in no way interferes with a person’s free exercise of his religion.”

That’s right.

1) Only those laws PURSUANT to the Constitution are the law of the land (U.S. Const., Art VI, Sec. 2). “Incorporation”, the Leftist excuse for all of the death and destruction of lives, freedoms, and the Constitution, is not supportable by the Constitution as written and originally understood and intended. Leftist “incorporation” also violates the precedent of the Slaughterhouse Cases of 1873 with not a word of explanation.

2) the Supreme Court does NOT make national law. National law is reserved exclusively to Congress (Id., Art. I, Sec. 1). The scope and power of federal courts including USSC is limited to the parties in individual cases and controversies (Id., Art. III, Sec. 2, Cl. 1).

All of the above make almost all modern USSC decisions null and void certainly as “national law” and if unconstitutional, invalid to the parties of the case. Unconstitutional federal acts and decisions, which are acts and decisions of tyranny, should be rejected, ignored and voided by the states and other federal branches.

When will a state like Texas get the kahunas to stand up to these federal thugs without fear of getting federal funding pulled? When will we once again stand for INDEPENDENCE, financially and constitutionally??

"The First Amendment is pointed DIRECTLY at the feds and NOWHERE else."

If I understand you correctly, I respectfully disagree.

Although the rights expressly protected by the Bill of Rights originally applied only to the feds, when the states ratified the 14th Amendment (ratified under questionable circumstances), they committed themselves to likewise respect the rights that they amend the Constitution to expressly protect.

”14th Amendment, Section 1: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States [emphasis added]; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Interestingly, the Federal courts seemed to have made a much stronger statement in support of religious freedom in the Burwell v. Hobby Lobby case. It was decided on explicit religious freedom grounds, but the U.S. Supreme Court made a landmark ruling that said closely held corporations (i.e., corporations that are not publicly traded, and where the owners control the sale of all shares) are protected by the First Amendment against government regulations that impose burdens on their religious freedom.

I believe any individual or group of partners who owns a business would do well to draft a set of company bylaws that clearly defines the company as one that conducts business according to specific religious tenets. This will go a long way toward ensuring that there will be no question about the legal protections afforded to the company under the Hobby Lobby ruling.

You don’t know what you’re talking about. The US Supreme Court is the final decision maker on ALL law. State and Federal. Common, statutory, administrative, constitutional. ALL LAW.

All that is required for the US Supreme Court to decide an issue of state law is for the state appeal process to be exhausted first. After that is concluded, an aggrieved party can petition the US Supreme Court for review.

If it accepts the case (i.e., grants petition for a writ of certiorari) it’s decision is final. That’s how it is. That’s how it’s always been.

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