Masterpiece Cakeshop: The Death Knell of Religious Liberty

The U.S. Supreme Court on Monday handed down its much-anticipated decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a case about whether a Christian baker, Jack Phillips, ought to be compelled to make cakes for same-sex weddings. In the 7-2 decision, the court held that any attempt to compel Phillips in that way was a violation of the First Amendment’s free exercise clause.

Many conservatives are celebrating the decision and, insofar as it is a victory for our right as citizens not to be compelled to speak words we don’t believe, yes, it is indeed a victory. We should certainly celebrate good—even if narrow—decisions when they’re handed down, but we should also keep our wits about us and maintain a sense of perspective in such situations.

In truth, rather than being a victory, this case lays the groundwork for the eventual obliteration of religious liberty. The Right, freedom lovers, religious traditionalists, civil libertarians, and patriots all over the country should be very worried about Masterpiece Cakeshop.

We have won this battle, but the writing is on the wall; we will lose the war. Why?

Because it seems plausible that the court only ruled in favor of the Christian baker in this case because of a peculiar and damning set of facts related to the Colorado Civil Rights Commission’s blatant intolerance of Phillips’ religious faith. Most egregious was this statement from a Colorado Civil Rights Commission official:

I would also like to reiterate what we said in the hearing or the last meeting. 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” (emphasis added).

That is about as clear a comparison of a believing Christian to practitioners of two of the most wicked ideologies and practices of human history—chattel slavery and literal Nazism—as we’re ever likely to hear from otherwise savvy social justice bureaucrats. The court rightly wasted no time remedying that egregious wrong, writing:

To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. 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 antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

I would be the first to applaud this stern rejection of the commission’s clear show of bias against the Christian faith, but we also need to be realistic.

The clear display of bigotry by the Colorado commissioners made it easy for a “strange bedfellows” majority to emerge: Justice Kennedy—who wrote for the court—was joined by Chief Justice John Roberts and Associate Justices Stephen Breyer, Samuel Alito, Elena Kagan, and Neil Gorsuch, with Clarence Thomas joining the decision but writing separately. But the problem is that it seems that the decision is entirely defined by that obviously illegitimate discrimination and has no broader reach.

For example, what would happen, if, in the future, another Christian—say, a florist—were to refuse to make floral arrangements for a same-sex couple, but the legal process wasn’t tainted by obvious bias against the florist as it was against Phillips in Masterpiece Cakeshop? It’s almost certain the composition of the majority wouldn’t the same and, for that reason, it’s likely the florist would lose to a narrow 5-4 majority led by, once again, Justice Kennedy.

The point is simple: The court cannot continue walking this tightrope and must eventually come down decisively on one side of this conscience-versus-antidiscrimination debate: either the court will be fully on the side of conscience, free speech, and the First Amendment’s bedrock primacy in our constitutional republic, or it will come down fully on the side of antidiscrimination, secular neutrality, equality, and the 14th Amendment’s ever-expanding reach.

The court, in other words, cannot have it both ways. Because for it, in essence, to “split the difference”—that is, rule that persons of faith receive conscience protections but only in situations where Caesar is openly biased against their faith—is implicitly, but clearly, to lend credibility to the real dispute that undergirds Masterpiece Cakeshop, which is merely the tip of this culture war iceberg: whether same-sex marriages are real marriages.

Think about it: The record shows that Phillips would sell any non-custom product to any customer, be they gay, straight, black, or white. What he would not do, however, is sell a custom product—a wedding cake—to a gay couple for their wedding. (He also wouldn’t make a cake celebrating a divorce, among other things.) But he would make a wedding cake for a male-female couple.

Thus, the salient differences are the sex of the parties and the type of union they will enter. Of course, Obergefell v. Hodges (2015) makes clear that two men or two women can be just as married as a man and a woman; there is no difference. But Masterpiece Cakeshop threatens that in a fundamental way: by allowing a vendor like Phillips to be exempt from making a wedding cake for same-sex couples, the court blesses Phillips’ belief that same-sex marriages aren’t really—or, at the very least, aren’t on the same level as heterosexual—marriages.

The ineluctable, grating logic of Obergefell seems to compel the opposite result: the baker ought to lose. Any other result ratifies, even if only subtly, the idea that only heterosexual marriages are real and worthy of respect. After all, what other marriages can you think of that are subject to this sort of possible treatment?

None. Therefore it’s plain for all to see that the march of “equality” won’t stop, and anyone who says otherwise is naïve.

Masterpiece Cakeshop is nothing more than a brief, temporary rest stop on our way to our ultimate destination, one illuminated by Justice Thomas’ (I fear) soon-to-be prophetic words from Obergefell: the “villi[fication] [of] Americans who are unwilling to assent to the new orthodoxy” and the “stamp[ing] out [of] every vestige of dissent [regarding same-sex marriage].”

“Bake the cake, bigot!”—backed up by the full force of government power—are words we shall all be compelled to heed soon enough. Masterpiece Cakeshop made that abundantly clear.

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Photo credit:  Kathryn Scott Osler/The Denver Post via Getty Images

About Deion A. Kathawa

Deion A. Kathawa is an attorney who hails from America’s heartland. He holds a J.D. from the University of Notre Dame and a B.A. from the University of Michigan-Ann Arbor. He is a 2021 alumnus of the Claremont Institute’s John Marshall Fellowship. Subscribe to his “Sed Kontra” newsletter.

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