Cake, Conscience, and Kangaroo Courts

The Supreme Court’s 7-2 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission was no jurisprudential masterpiece, but its messy eating marks an important point in First Amendment law, in both religious free exercise and free speech rights. Justice Anthony Kennedy’s opinion is the first step in unshackling religious free exercise from the hostility of earlier opinions.

As legal scholar John Eastman observes, for the first time “the Supreme Court applied strict scrutiny to a neutral, generally applicable law that was not designed to target religion.” A valid law might be unconstitutionally applied against religious objectors.

Concurring opinions point the way to an even stronger free speech argument but, for now, it remains one that could not find a majority. Justice Ruth Bader Ginsburg’s brief dissent had to excuse the lawlessness of the Colorado Civil Rights Commission—a kangaroo court, if we can brook the insult to marsupials. The commission’s escape from sustained excoriation marks a delayed execution for this Dickensian example of the administrative state. The lawsuit was conceived in moralistic posturing but ends with a pie in the face.

Let us take these points in order—free speech, religious free exercise, and the bureaucratic bullying of the administrative state. The most elegant way of discussing these are from Justice Clarence Thomas’s spot-on concurrence. Keep in mind that Thomas is the most radical justice in denouncing the administrative state’s hostility to liberty and constitutionalism.

Thomas concludes his concurrence, “Because the Court’s decision vindicates Phillips’ right to free exercise [in his art of making custom wedding cakes], it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell [when the Court demanded same-sex marriage] from being used to [in Justice Alito’s words] ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’”

The once allegedly bigoted majority has now become the bullied minority. “If Phillips’ continued adherence to that understanding makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected. (‘[T]he fact that [the social acceptance of homosexuality] may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view’).”

The First Amendment as a whole is intended to remind the federal government especially of its need to respect reason in its various forms—religious freedom, free speech and press, and association. Think not only of the Declaration of Independence but as well of sermons (often very political besides being explications of Scripture or exhortations to salvation), political debates, jury trials, the formation of political parties.

For all the considerable time spent at oral argument on the free speech or expressive element of wedding cake preparation as this Christian baker practiced it, that argument played no role in the court’s opinion, though it did in two concurring opinions. The court evidently had problems with finding the creation of a wedding cake a form of expression.

It was clear to Justice Kennedy that “The neutral and respectful consideration to which [baker] Phillips was entitled was compromised . . . . The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.” One Commissioner had even declared that 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 . . . .” With Kennedy’s strict scrutiny test one would not require raging Jacobins to prove anti-religious animus. Just as “unconscious bias” is being (badly) touted as a factor in race discrimination cases, might a pervasive secularism suffice to show discrimination against believers?

Though Thomas concurred with Kennedy, we should also keep in mind his denunciations of the administrative state in other opinions. As former chairman of the U.S. Equal Employment Opportunity Commission, the federal government’s employment law enforcement agency, Thomas must have been aghast at the Colorado Civil Rights Commission’s audacity and unprofessionalism. It was the height of judicial restraint for him not to declare this pathetic creature of Colorado’s state government unconstitutional, in violation of the Constitution’s guarantee of a republican form of government to the states, though he wisely left Colorado to fix its own mess:

In 2014, when the commission found Philips in violation of Colorado law, the commissioners, who serve as volunteers, were “Katina Banks (D), chair; Raju Jairam (Un), vice chair; Diann Rice (Un); Marvin Adams (R); Heidi J. Hess (D); Dulce Saenz (Un) and A. Susie Velasquez (D).” None of these officials currently serve. The “bipartisan” commission at that time was in fact comprised of one Republican, three Democrats, and three unaffiliated activists. Two commissioners represent business (one represents small business), two represent state or local government, and three represent the community at large.

At least four of the commissioners are to be members of groups who have been or might be discriminated against because of disability, race, creed, color, sex, national origin, sexual orientation, marital status, religion, or age. An attempt to reform the commission still left appointment powers to the governor, who was required to have no more than three appointees from each party. One commissioner representing state or local governments is Anthony Aragon, a.k.a. Lushus La’Rell.

But adjusting partisan ratios and other tinkering does not save this monstrosity. The commission is, at bottom, a collection of volunteer-activists, meeting once a month, structured to reinforce group identities and, unlike the merely useless state advisory committees of the U.S. Commission on Civil Rights, a formal, quasi-judicial, if arbitrary power, as the Masterpiece Cakeshop treatment signifies. If they had had their way, baker Jack Phillips would have had to provide sensitivity training about homosexuality to his staff, including his family against his will and contrary to his beliefs. How can this represent anything other than government instructing citizens what is and is not permissible to believe about moral questions?

It is not at all strange that we see the great sources of human dignity and the enemy of that dignity come together in this case. On the one hand we have the sources: religious freedom and free speech, that is, man’s realization of his need for God and man’s capacity to govern himself through speech. On the other we have the administrative state, the soulless bureaucracy that would presume to meet basic human needs and make freedom superfluous and even odious in the process. One is a fitting arrangement for the governing of free men. The other is the subjugation of subjects.

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Photo credit:  Sarah Silbiger/CQ Roll Call

About Ken Masugi

Ken Masugi, Ph.D., is a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, as well as for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of seven books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

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