Houston Chronicle - Opinion | Friday, June 8, 2018
By Susanna Dokupil (former assistant solicitor general for the state of Texas) and Marco Roberts (President of the Log Cabin Republicans of Houston)
The Supreme Court ruled 7-2 Monday in Masterpiece Cakeshop v. Colorado Civil Rights Commission that compelling a baker to create a cake for a same-sex couple’s wedding was unconstitutional under the Free Exercise Clause. While religious liberty advocates won a legal victory, both sides — indeed, all Americans, religious or not — won a victory for freedom of conscience and mutual tolerance.
Jack Phillips, the baker, told a same-sex couple that he would sell them any products in his shop. However, he refused to create a cake for their wedding because he would not use his artistic self-expression to participate in a ritual that conflicted with his faith. The couple claimed unlawful discrimination on the basis of sexual orientation, and the Colorado Civil Rights Commission agreed.
The majority opinion, written by Justice Kennedy, got seven votes with only Justices Ginsberg and Sotomayor dissenting. In other words, all the conservatives and the moderates agreed on the result. The importance of that consensus cannot be overstated.
But what is really going on in this opinion? The majority focuses heavily on a key fact: Members of the Colorado Civil Rights Commission expressed open hostility to Phillips and dismissed the validity of his religious views in the process of ruling against him. Meanwhile, the opinion never suggests that Jack Phillips behaved in an impolite or disrespectful manner. Rather, it goes into great detail to explain that the applicable civil rights laws were not clear, and Phillips may reasonably have believed he acted legally.
Motive matters in First Amendment religious liberty cases. Even strikingly similar cases can reach opposite results based on the court’s assessment of a party’s intent to follow or flout the law. In 2005, the court decided two landmark cases involving Ten Commandments displays on the same day. In one, then-Attorney General Greg Abbott successfully argued that a Ten Commandments monument on the Texas state capitol grounds was constitutional because it was presented in the context of other monuments and displays. In the other, Kentucky’s county courthouse displays failed the test of constitutionality because the court found that their intent was to promote religion.
Seven Justices agreed that government-sponsored hostility toward religious beliefs is unacceptable: “[T]he government, if it is to respect the Constitution’s guarantee of free exercise, 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.” A seven-vote majority for this statement is a huge victory for religious liberty.
At the same time, seven Justices agreed with the opinion’s closing words: “[T]hese disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.” The Court absolutely refused to make a sweeping ruling that either side is always right. Rather like parents settling disputes between children, the majority seems inclined to consider not only who has rights, but also who has played well with others.
Note that even though civil rights are at issue here, the Colorado law has nothing to do with the federal Civil Rights Act of 1964. The Civil Rights Act does not require private businesses to enter into a private contract to create a custom product that promotes the customer’s message. Anyone should be able to go into a restaurant and order off the menu, but should that same restaurant have to provide catering for anyone’s event? The idea that customers can compel businesses to support their values, messages or agendas in the name of anti-discrimination is a significant change from the civil rights of the past — and more importantly, we as a society have not had a comprehensive discussion about what that change means or whether it is a good idea.
The Masterpiece Cakeshop case leaves much unresolved, but it also leaves much freedom for us to resolve our differences without a court mandate. Whatever one thinks of the court’s reasoning as a jurisprudential matter, as a practical matter, people who disagree about religion, relationships or any other issue for any reason have to find a way to peaceably coexist, transact ordinary business and decide for what meaningful purposes we, as individuals, choose to put our bodies and minds to work. At its core, the conflict in this opinion transcends same-sex marriage or what anyone thinks of it — it’s about our fundamental rights to exercise freedom of conscience, our rights to the fruits of our own labor, and how tolerance promotes both. To the extent that the Masterpiece Cakeshop decision results in mutual tolerance, we all win.