When the Supreme Court first released its decision in Masterpiece Cakeshop earlier this month, most commentators dismissed it as a nothing-burger. It looked like the court was simply punting on its responsibility to tell us what the law is. After all, the justices only get paid $214,000 per year—why should they bother doing their jobs for such a paltry sum?
On closer inspection, though, it appears that the case sets a precedent that will haunt those of us who believe in equality under the law for a long time to come.
As you probably know, Masterpiece is one of a number of cases around the country in which an individual (in this case, a baker) decided it was OK to discriminate against gay people arranging a legal wedding, because God hates gay weddings. Laws banning discrimination based on sexual preference move these folks not at all, because they consider themselves above human law.
Four courts in Colorado said “No, you have to obey the same laws as everyone else.” That’s exactly the same result the Supreme Court reached in the 1990 Smith case: a neutral law not intended to hurt any particular religion (in this case, a nondiscrimination law) can’t be ignored just by someone insisting that God’s against it. The court could have reached this result in a couple of paragraphs.
Instead, the court ruled that the baker’s constitutional right to free exercise of religion had been violated because two (of seven) commissioners on one of the four panels had expressed “hostility to religion” in some of their comments. The hostility was so horrific that the court didn’t do what you’d normally expect in a case of a tainted trial—call for a do-over. Instead, the court simply ruled (in essence): “Defendant walks.”
These hostile comments must really be juicy stuff, right? Right out of Lenin and Mao’s playbook, no doubt. Decide for yourself:
1. “[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.” The court grumbled that this language was “inappropriate and dismissive.”
2. Now for the real smoking gun: “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.”
That’s it. The beginning and end of the “hostility to religion” that allowed this lawbreaker to get off scot-free. Never mind that the declarative portion of the statement is 100 percent true. Religion has in fact been used to justify all sorts of abominations—I’d add torture and the dehumanization of women to the list along with slavery and the Holocaust. Was use of the word “despicable” over the top? Nope. The commissioner wasn’t saying that religion in general is despicable, or even that opposition to gay marriage is despicable. She was simply saying that using religion to hurt other people is despicable.
As it is.
Nevertheless, soon-to-depart Justice Anthony Kennedy (joined by six others) solemnly intoned that “This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law.” In other words, unless you believe that using religion to hurt other people is hunky-dory, you have no place serving on a judicial body. Going even further, Kennedy said that government “cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.”
So now this is official precedent, citable as revealed wisdom in hundreds of future briefs and opinions. Already there is gleeful expectation from the God lobby that the scales have been tipped in the 150-year war over sending tax money to religious schools. Any judge (maybe any legislator?) trying to preserve the principles of secular education will have to tiptoe on eggshells to avoid the accusation: “Oh my God! Hostile to religion!”
In fact, the next shoe has already dropped. On Monday, the court vacated a judgment against a florist in Washington state who refused to provide service to gay weddings, with an order for the Washington Supreme Court to reconsider “in light of” the Masterpiece opinion. In other words, they’re to scour the record for some hint of inadequate groveling to religion and then let the florist go once they find it.
When a board decides whether to grant a regional operating license to a secular hospital that performs all medical procedures, or to a religious hospital that performs only procedures its God experts approve, it will be confronted with Kennedy’s immortal words: it “cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.”
When a city or state decides whether adoption and foster care agencies have to treat prospective gay parents the same as prospective straight parents, any hint of a “sentiment” that is “inappropriate” on the part of decision makers will produce a predictable result: gay parents lose.
When a school board decides whether to teach creationism as an “alternative” to evolution by natural selection in schools, it would seem impossible to disfavor creationism without passing judgment on “the illegitimacy of religious beliefs,” which is what seven justices say we can never do.
The Masterpiece case, following last year’s Trinity Lutheran catastrophe, is another step down the path of government cramming religion down our throats. With President Trump now given the opportunity to appoint another Supreme Court justice, we can only assume there’s a lot more to come.