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Supreme Court’s Masterpiece Majority Wants To Kill Freedom Softly


Monday, in a resounding 7-2 ruling, the Supreme Court affirmed that the government cannot crush your freedom unless they’re really nice about it.

The court ruled in favor of Jack Phillips, a devout Christian and proprietor of Masterpiece Cakeshop, who had been prosecuted by the Colorado Civil Rights Commission for refusing to bake a cake for a gay wedding. Yet the court ruled in his favor on very narrow, purely procedural grounds that are intended to punt on the underlying issue of religious liberty.

Justice Anthony Kennedy’s majority opinion makes it pretty clear that they’re punting on the substantive issue, because it keeps referring to future rulings in nearly identical cases that might go the other way.

Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.

And later:

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

As punts go, that’s a long one. Basically, Kennedy’s conclusion states that there are two clashing goals, religious freedom and anti-discrimination, and the court is not going to take any position on how to integrate them, leaving that task to future cases. A concurring opinion from two of the left-leaning justices on the court, written by Kagan and joined by Breyer, makes this explicit, because it consists entirely of explaining how Colorado could have justified prosecuting the baker, had it followed better procedures.

That is the whole focus of the ruling: procedure. The Supreme Court rules in the baker’s favor primarily because of intemperate comments on religion commission members made during its hearings, which showed that “the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of his religious beliefs.” Kennedy’s majority opinion implies that such tolerance and respect applies only to the words bureaucrats use in their public statements.

As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust…. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.

I understand the Supreme Court’s habit of keeping its rulings narrow rather than using them as a springboard to speculate about issues beyond the precise scope of a specific case. And I can see the desire to narrow the reasoning of the majority opinion in order to get two left-leaning justices on board and make a ruling in a controversial case seem less partisan. But this ruling is so narrowly construed that it basically remains agnostic on the question of whether government officials can force a religious person to violate his conscience and instead just focuses on how scrupulously polite they are when they violate it.

The chief evasion in this ruling is the idea that the state has to maintain “neutrality” toward traditionalist religious views during its process. The words “neutrality” and “impartiality” appear repeatedly in the majority ruling, and this is the heart of its argument. But these laws are inherently not religiously “neutral” and “impartial.” Laws requiring citizens to provide services for a gay wedding are inherently aimed at punishing those who dissent from the prevailing orthodoxy on this question. In this case, that means primarily traditional Christians. This is who the law is aimed at.

As usual, Justice Clarence Thomas is the only one who penetrates to the central issue, which strikes at the constitutionality of anti-discrimination laws as such. “If the only reason a public-accommodations law regulates speech is ‘to produce a society free of…biases’ against the protected groups, that purpose is ‘decidedly fatal’ to the law’s constitutionality, ‘for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.'”

As he also points out, it makes no difference whether you agree with the unorthodox opinions in question, and in fact, the fewer people agree with them, the more they need protection. These sentiments were all boilerplate “liberalism” when I grew up. Now it takes the Supreme Court’s most intransigent conservative to state them.

It makes no sense to demand government neutrality in enforcing a law that inherently consists of the state choosing sides in the culture war. So all that the majority ruling really amounts to is the requirement that government officials make a convincing pretense of religious neutrality—while they declare their victims’ religious views to be backward and regressive and unacceptable to the state.

The end of that road is summed up in the dissenting opinion from Ruth Bader Ginsburg, who has been adopted as the Left’s chief judicial hero. At the end of a footnote in which she pretends not to know of any symbolic meaning to a wedding cake, to the point where it is doubtful she would be able to identify one if she saw it, she concludes merely that “Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive conduct.”

This sums up the underlying attitude behind her opinion. Ginsburg’s presumption is automatically in favor of using government power for any and every social end it considers desirable—and the burden is on the citizen to find some very narrow and explicit precedent blocking a particular use of that power. The state always gets the benefit of the doubt, the citizen never.

If the issue is how we can be “tolerant and respectful” of religious beliefs with which we disagree, I would point out that the words we use are the least important issue. The first and most important way to be tolerant and respectful of another man’s beliefs is to not prosecute him for those beliefs in the first place.

Maybe, in another one of those future rulings we’ve been promised, we will get a smaller but more robust majority in favor of this approach. For now, the Supreme Court is treating our essential freedoms as yet another can to be kicked down the road.

Robert Tracinski is a senior writer for The Federalist. His work can also be found at The Tracinski Letter.