The Supreme Court’s 7–2 decision this morning in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is a victory for religious liberty. Specifically, the Court recognized at least some religious liberty for Christian businesses to decline to participate in same-sex weddings they object to on grounds of the 2,000-year-old Christian tradition, derived explicitly from Jesus’ own words in the Gospels of Matthew and Mark, that defines marriage as the union of one man and one woman. But the lopsided 7–2 vote — only Justices Ginsburg and Sotomayor would recognize no religious liberty at all here — should not obscure the narrowness of Justice Kennedy’s opinion, which leaves many questions for another day, places religious liberty on something less than the firmest of grounds, and reveals much about the current drift of how our politics and law safeguard vital liberties that the Founding Fathers would have protected much more broadly. And it may be bad news for President Trump in the travel-ban case.
The Icing on the Cake
The facts in Masterpiece Cakeshop were highly unsympathetic to the Colorado Civil Rights Commission’s pursuit of the Christian cake baker, Jack Phillips, and from the start, that put defenders of the Commission on the defensive and gave them an incentive to prefer a narrow defeat in this case to a broader ruling. The baker did not operate a large corporation, had been in business for two decades, testified convincingly to his sincere religious convictions, and made clear to the gay couple at the outset that he would gladly serve them, he just wouldn’t do same-sex-wedding cakes: “To create a wedding cake for an event that celebrates something that directly goes against the teachings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.”