A nice win that’ll hopefully provide the foundation for a more sweeping victory later, but this isn’t the home run righties were hoping for. Conservatives wanted the Court to hold that business owners have a First Amendment right to free exercise of religion that trumps antidiscimination laws, at least with respect to catering gay weddings. What the Court actually held is that *in this particular case* Colorado’s antidiscrimination commission was so openly hostile to Jack Phillips’s religious claims, dismissing his beliefs as insincere and holding him to a double standard that pro-gay business owners weren’t held to, that they violated his particular right to free exercise.
Which leaves undecided the key question: What if the commission had been more respectful of Phillips? What if they had carefully considered his religious objection yet still concluded that he was required under the law to bake the cake? Would that decision be constitutional? That’s the question righties wanted answered — not whether the law here was unconstitutional as applied to Phillips but whether it’s always and necessarily unconstitutional whenever a sincere claim of conscientious objection is made by a business owner. Jack Phillips won, but would you win under the same circumstances with a more respectful commission hearing your claim? Unclear.
Would’ve been nice for the Court to resolve that now, when there’s still a conservative majority, but this narrower ruling may have been as far as Anthony Kennedy (who’s written all of the Court’s landmark gay-rights rulings over the past 25 years) was willing to go. It’s so narrow, in fact, that it produced a not-so-narrow majority: Breyer and Kagan felt comfortable joining the conservatives because all the Court ended up deciding here, really, is that business owners’ free-exercise rights should at least be *considered* when applying antidiscrimination laws against them. In that sense the decision is a solid win for the right. The strong-form left-wing view that religious objections to serving gay weddings are necessarily bigoted and/or irrational and therefore can’t lawfully provide an exemption to antidiscrimination statutes is out the window. The Christian viewpoint is a reasonable one. Just not the one that prevails in future cases, perhaps.
Here’s Kennedy writing for the Court, noting how ridiculously hostile the commission was to Phillips:
It’s not (necessarily) that the law was unconstitutional, in other words, it’s that the “judge” in this case, the commission, behaved unconstitutionally in its hostility to religion. And that’s not the only way they showed their bias, notes Kennedy. The commission argued that Phillips was silly to claim that putting a pro-gay message on a cake at a customer’s request would offend his conscience. But when other bakers refused to put anti-gay messages on a cake at other customers’ requests, the commission ruled that that would indeed be an affront to their consciences.
They were in the tank against Phillips because they have contempt for the traditional Christian view of gay marriage and they weren’t afraid to show it. The obvious possibility this decision creates is that antidiscrimination commissions going forward will continue to be in the tank against Christians but will simply be more careful about showing it, remaining unfailingly polite to religious business owners at public hearings and then consistently ruling against them. What would SCOTUS do in that case? That’s the question we were hoping to have answered today but the Court ducked.
Here’s Kennedy’s conclusion, essentially punting the matter to lower courts to sort these cases out in an ad hoc way. Open hostility to either side’s viewpoint is a no-no, but beyond that we’re on a wing and a prayer:
One other little quirk in the opinion: Kennedy notes that when this case first arose, SCOTUS hadn’t yet declared gay marriage a constitutional right and Colorado hadn’t yet legalized gay marriage. “Since the State itself did not allow those marriages to be performed in Colorado,” wrote Kennedy, “there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs…” Can’t fault Jack Phillips for thinking it was okay to refuse to serve gay weddings when that was the policy of the state of Colorado itself. But that leads to another obvious question: Now that gay marriage is legal from coast to coast, will future Phillipses have less of a leg to stand on in cases like these? They’re on notice that gay weddings aren’t illegal, whatever they may happen to think about their morality.
Exit question via Erick Erickson: If the commission’s public statements evincing hostility to religion were enough to decide this matter, what other matters might be decided by public statements evincing hostility to religion?
Update: Much pithier summaries of the decision:
Basically, the Supreme Court found that some Colorado commissioners are jerks.
— Robert VerBruggen (@RAVerBruggen) June 4, 2018
I'm grateful for the SCOTUS decision, but remain v. apprehensive. If Colo commission had said not "Bake the cake, bigot," but merely, "Bake the cake," would the ruling have been different? https://t.co/ePL87zMXAj
— Rod Dreher (@roddreher) June 4, 2018