Short Take: Masterpiece Lost

The Supreme Court punted in its Masterpiece Cakeshop decision, a 7-2 ruling that reversed the Colorado Civil Rights Commission on the narrowest of grounds, so fact-bound as to make it generally inapplicable to any other scenario. By doing so, the Court failed to answer the two questions posed: can a person be compelled to engage in speech against his will to avoid discrimination, and does discrimination on the basis of sexual orientation take precedence over discrimination on the basis of religion.

We’re no clearer on either issue today than we were before the ruling.

As many have noted, the path the court took toward ruling for the baker clearly reflected a compromise among justices with very different views. The court dealt with the profound issues of free expression and freedom of religion that the case seemed to present (whether it really presented them is a separate question) by avoiding them; as Prof. Michael Dorf of Cornell Law School wrote of the opinion, “At best, it is a masterpiece of ducking the hard questions.”

And Linda Greenhouse isn’t at all pleased with the outcome.

Those of us who were afraid that the Supreme Court would use the Masterpiece Cakeshop case to issue a license to discriminate against gay people in the name of religion breathed a sigh of relief on Monday. The court’s insistence that the dignity and equality of gay individuals “must be given great weight and respect by the courts” made clear that no such general license will be forthcoming as long as the majority opinion’s author, Justice Anthony M. Kennedy, remains on the bench.

Rather than hinge her fears on the vagaries of language like “dignity,” Justice Kennedy’s favorite word, and the trade off for “equality” for gay individuals that comes at the expense of compelled speech and free exercise of religion, despite their enumeration in the First Amendment, she lays the problem at Justice Kennedy’s door.

“As long as” is an important qualification, of course; the retirement intentions of Justice Kennedy, who turns 82 next month and is the court’s longest-serving current member, are the subject of increasingly frantic speculation.

This reflects a two-pronged problem: will Anthony Kennedy stay on the Supreme Court as Protector of the Faith? And if he doesn’t, will Darth Cheeto nominate the Ghost of Bork to replace him? But as Greenhouse goes on to note, not even Justice Kennedy can be reliably trusted to hold firm to her “exquisite sensitivities.”

My fear is that the Supreme Court has imposed a regime of constitutional political correctness on how we talk about religion. There is a striking contrast between the exquisite sensitivity for religious feelings that Justice Kennedy displayed on Monday and his casual rejection only four years ago of the notion that unwanted exposure to religious speech could be so offensive to nonbelievers as to violate their constitutional rights. I’m referring to Town of Greece v. Galloway, a 2014 decision on whether the overtly Christian prayers with which an upstate New York town opened its monthly town board meetings violated the First Amendment’s Establishment Clause.

Notably, Greenhouse put little effort into explaining why the holdings appear inconsistent, and there is a view that Galloway was an unprincipled decision that gave a grudging hat tip to a tradition that wasn’t really too awful but couldn’t really pass constitutional muster if it was put to a serious test. To say so, however, would have made clear that the free exercise of religion has become a disfavored right, despite its enumeration, amongst a certain crowd who have other fish to fry.

Nonetheless, the religious right didn’t get what it wanted from this case, and we have Justice Kennedy to thank for that. He found a way for two gay men to lose a case without setting back the cause of gay equality for which he has earned his place in history.

For Greenhouse, the decision was simple: she favors “dignity and equality for gay individuals” over religion and free speech. For others, the question remains how, or whether, we can accommodate everyone’s rights. Kennedy’s opinion didn’t answer any of these questions, for which he has earned his place in history.

17 comments on “Short Take: Masterpiece Lost

  1. Keith

    Kennedy’s views on punting into the penumbras appear not to be evolving fast enough for Greenhouse, huh?

    1. Hunting Guy

      Ruth Bader Ginsburg

      “On the whole, we think of our consumers – other judges, lawyers, the public. The law that the Supreme Court establishes is the law that they must live by, so all things considered, it’s better to have it clearer than confusing.”

  2. JeffA

    The comment section for Randazza’s post on the subject over at Popehat is a mess (of course) but a note from one SebastianH makes an interesting point; expressive works were not considered public accommodations under the 1964 Civil Rights Act, while Colorado law says that every goods and service is a public accommodation. It wouldn’t answer the question of Religion vs Equality, but fixing this broad stroke could at least keep Colorado on the constitutional side with regards to expression and compelled speech. Then again, maybe monkeys could fly out of my butt.

    1. B. McLeod

      There have never been regulations against Greenspan gasses (even when there perhaps should have been).

  3. Appellate Squawk

    A staff attorney from a large public defender organization sent out an email: “While this decision is extremely disappointing for many in the LGBTQ communities. . . this case is the typical litigation strategy used by middle class white gay men (and the marriage equality advocates) and a reminder that we need to do better in centering queer/trans people of color in this work.”

    In response to the objections of supporters of white privilege, the head of the outfit gave his ringing endorsement: [The] email yesterday about the reality of the struggles many LGBTQGC+ people of color face, as opposed to those in the community who are white, was important and should not be lost or diluted.​”

    Neither author gave the slightest sign of having read the decision.

  4. Bryan Burroughs

    I fail to see how states effectively having religious tests for what jobs people are allowed to do even remotely passes 1st Amendment scrutiny.

    I get that the SC punted on this one, because we like our anti-discrimination laws. It just seems that this one is a bit on the obvious side, even if we don’t like where it takes us. As a case like this is sure to come up again, I expect the next set of lawyers to focus more on the religion aspects than on the free expression ones. The former is a much stronger argument while the latter allowed ignoring the heart of the matter.


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