Whatever the U.S. Supreme Court says is the law of the land. That doesn’t make it the right law. The court’s tradition of superb rulings is also rich in disastrous ones, whether it’s Dred Scott in 1857, the 1896 Plessy-Ferguson consecration of segregation or the 1905 Lochner decision that the current court is re-baking for us morsel by morsel: Lochner for 30 years restored a master-slave-like definition of contracts between employer and employees, absolving business of ethical and humane responsibilities and denying employees most rights. The court’s May 21 decision denying workers the right to sue over wage theft is a valentine to Lochner and yellow-dog contracts. Expect worse.
More recent decisions conjuring predetermined ends include handing George W. Bush the presidency, reducing elections to contests of wealth, inventing an individual right to bear arms and letting Christian corporations be their employees’ chastity belts.
But that’s why we have nine justices, not one, why yesterday’s dissents are tomorrow’s laws, and why, even in the words of Antonin Scalia–who so stylishly scorned dissenters once he found himself a more frequent majoritarian–“dissents augment rather than diminish the prestige of the Court.” Oliver Wendell Holmes and Louis Brandeis spent most of their careers writing dissents that became law a few decades later. They were not ahead of their time. They were surrounded by colleagues who were, to put it gently, behind theirs. So it is with today’s majority.
Last Monday the court in its wedding-cake ruling declared gays once again second-class citizens, at least when their sexuality has to compete with someone else’s more stone-throwing version of Christianity. Justice Anthony Kennedy, who’s written all the more liberalizing, pro-gay decisions of the last 20 years, authored this one as well, justifying it on its narrowest of grounds: he wasn’t compromising the dignity of gays, he claims, he was just ensuring that a person’s belief was not trampled. The end result is the same. Gays are trampled, because god forbid they’d have equal rights, which is all these queers were asking for.
The question was whether a Colorado baker called Jack Phillips had the right to deny Charlie Craig and David Mullins, two gay men, their wedding cake on religious grounds. The court said yes. But to get there it had to rely not on written law, which explicitly forbade the baker to do what the court excused. Colorado law states: “It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”
Seems clear. But rather than relying on the law, Kennedy chose to rely on what some members of a civil rights commission said during proceedings that declared Philips’s refusal illegal. Specifically, a commission member said: “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.”
Kennedy found that statement hostile to religion, and therefore prejudicial to Phillips. On that basis, he ruled in Phillips’s favor.
I agree that the commissioner’s statement is at least partly hostile. It is also factual and indisputable. It is the reason we have laws that attempt to secularize the public sphere, so religion is respected but not turned into a cudgel with favored hierarchies: Beliefs shouldn’t turn on a subjective judgment, like Kennedy’s claim that Phillips’s belief is “sincere.” Sincere according to what criteria? Is a wife-beater more sincerely Christian because he can quote Ephesians’ line about wives having to submit to their husbands? And what has his sincerity got to do with his violence, whatever the Bible says? Is a homophobe more sincere as a Christian homophobe because he knows his Leviticus and has 2,000 years of church-gilded bigotry behind him, as opposed to just a couple of years of U.S. v. Windsor? (Give this to Phillips: the Supreme Court was a few months away from declaring gay marriage legal when he declared Craig’s and Mullins’s uncakable.)
There’s no getting out of the labyrinth of the absurd the moment belief of any sort is substituted as a fundament of law. That’s why we have a secular constitution. The Bible isn’t fact. It’s hardly belief if consistency matters: for every verse drafted into service by homophobes I can quote you three times as many celebrations of love in every eroticized form from the Song of Songs even to that misogynist St. Paul. And not once will you find the word “homosexual” anywhere: the Bible is among our first and greatest guides to gender-neutral dignity. So when Phillips the baker claims that creating a wedding cake for two fags “celebrates something that directly goes against the teachings of the Bible,” a good place to start is not to take that sincere belief at face value, but to test it on its own terms, Bible in hand.
For all that, no one was questioning Phillips’s faith, only his refusal to do for one couple what he would do for any other, as long as they were heteros. His belief is a canard. His conduct in the context of his business is the only issue. His belief didn’t even have anything to do with the gay couple’s request. They weren’t calling his beliefs in doubt or suggesting that by baking them a cake he was endorsing their sexuality. The cake was not about gay sex. Only Phillips made it so. The cake was about cake and icing: we’ll never know. It never got as far because Phillips told them: “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” In an ironic twist of the old homophobic complaint about gays constantly ramming their sexuality down other people’s throats (a sexually supremacist complaint that suggests heteros somehow get to set the agenda of sexual mores) it was Phillips who was ramming his beliefs instead of a nice wedding cake down the couple’s gullets.
But he was doing it sincerely and he was a good, white, past-middle-age Colorado Christian as opposed to, say, a particularly retrograde Saudi Muslim baker who thinks he can still get away with not making cakes for Jews (and gays and Christians and Iranians and Yemenis and women and Manchester United fans etc.). Or just a plain-vanilla atheist homophobe. So Phillips got a pass.
The court’s 7-2 decision gives the impression that it was lopsided. Not so. The decision was actually very fragmented, with three opinions in the majority and one in dissent, all four clashing to some extent. Justice Elena Kagan, who wrote the dissent and was joined by Stephen Breyer, two reliable liberals, devoted a couple of lines to supporting Kennedy’s requirement of “neutral and respectful consideration” to religious views, then spent the rest of her four pages showing how the Colorado Civil Rights Commission could have more easily and flatly rejected Phillips’s claim. In other words, Kagan corrected the rights commission’s ruling by showing its amateur flaws and writing what amounts to a dissent in the form of a concurrence while banking a future favor in Kennedy’s account.
Another potential silver lining: Kennedy clearly signaled that what officials say on the way to a decision can be just as important in judging the legality of the decision as the decision’s wording. That should not bode well for President Trump, whose Muslim ban was paved with the bad intentions of explicitly vile comments prejudicial to Islam as a whole. If Kennedy falls on the administration’s side in that decision on the legality of the ban, due any day now, his contradiction will be Bible-worthy.
But that’s a different story. In Masterpiece Cakeshop, the court endorsed what amounts to a sign in the window: No wedding cakes for gays. I expect that in Taliban country. I don’t expect it in the United States. This court just made it permissible all over again. It won’t last. The ruling will be thrown out sooner or later. But until the dissenting opinions win the day, the dignity of millions will be sacrificed at the hetero-altar of religious correctness.
Pierre Tristam is FlaglerLive’s editor. Reach him by email here or follow him @PierreTristam. A version of this piece aired on WNZF.
It is not mans law
It is Gods law man And women
Not two idiots
You can’t force someone to make a cake just like you can’t force them to think it’s okay for two men to love each other. The cake maker didn’t force his views on them he just chose not to make them a cake. The proud couple should just find someone who has there same thoughts to make them a cake. Some people disagree with there choice it’s OK to disagree. It’s not OK to force.
Maybe everyone should have the right to make the choice they want to make. It’s a private company. They should be able to choose who’s business they want and don’t want. If someone doesn’t like it, just don’t go to that business. It’s so simple. Why force your opinion or way of life on someone else? If it was a gay baker and he didn’t want to bake a cake for a heterosexual, no one would care. It’s ridiculous the double standards nowadays.
Wow. So if an African American dry cleaner refused to wash some idiot’s KKK outfit, that would not be within their rights? Or a Morman bookstore refused to order a Wiccan book for you, that would be wrong? Wait, it would mean that if a newspaper refused an advertiser, that would’ve illegal. I am sure I have seen a list of businesses whose money you won’t take; this will be an interesting test. Given the statement is by the editor of the paper and not an op ed piece, you had better be careful the next time you think of telling an advertiser no. It might be me.
Personally, I would rather have someone say “no thanks” than wonder if they intentionally jacked with the recipe. Clearly this wasn’t about a cake. And if I try buying an ad in the paper, it won’t be about the ad either.
Josh Davis says
Insightful, smart and riveting article. I believe the conclusion by this author, however, is incorrect. The appeal to the SCOTUS rested mostly on the decision made by the commission in Colorado. Kennedy stressed repeatedly the commissioners “endorsed the view that religious beliefs cannot be legitimately carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” The decision is exactly the reason the SCOTUS exists. This was not an all encompassing, sweeping, homophobic decision. It was the highest court correcting mistakes made by inferior law makers. Religious beliefs may be carried in public. If Colorado had ruled for the couple on constitutional grounds, the SCOTUS would’ve upheld their decision.
Agree 100% with Nobody Says
Nonsense Pierre, you have the right to exclude comments that don’t agree with your agenda, and you use that right frequently.
Pierre Tristam says
Mishmash Elvis. If this site had a paywall or any kind of filtering wall and used it to admit, say, only Beatles fans, you might have a point. As it is you’re free not only to come and go, but to comment—a privilege, as our policy states, not a right. It’s true that comments are moderated (primarily not by me, I see only a fraction), but if you were anywhere near correct you’d see roughly 70 percent fewer comments, including on threads like these. Agendas have nothing to do with it.
Nice words – agree with all. Respectfully, they’re besides the point of the real story:
The Christian Legal Army Behind ‘Masterpiece Cakeshop’
A special investigation into the rise of Alliance Defending Freedom.
By Sarah Posner
“…ADF’s funding comes from individual donations, which by law are kept secret, as well as from charitable foundations, which by law must be disclosed on the donors’ tax returns. But much of ADF’s foundation funding—$77.6 million between 2008 and 2015, more than a quarter of the organization’s total donations during this period—comes through the National Christian Charitable Foundation, a conservative donor-advised fund that allows contributors to shield their identities from public view…”
Link to full article
“…that allows contributors to shield their identities from public view…” If one wonders how, and why, the will of the rest of us is constantly ignored – start there. The law provides for legalized money laundering. Period.
The Geode says
Imagine MY plight. I am black. Nobody has to ASK me if I’m “black”. Now imagine my discrimination put in the SAME category as gay, religion or creed. These other things AREN’T recognizable and could be easily circumvented by NOT disclosing anything. Gays can hide their “sexual orientation” from family bosses and even SPOUSES. My black ass can’t hide from shit no matter WHAT I choose to “disclose”. Sorry. I don’t feel too much sympathy for someone trying to force a business to do something they had a choice to get done somewhere else.
Steve Robinson says
A very fine column in every respect. I am curious as to why “Anonymous” posts as “Anonymous.” If you have a beef, own up to it and stand behind your words, which, unless they are libelous, are protected by our Constitution. As far as the protection of religion goes, you are free to practice, in your home and your place of worship, whatever faith you embrace. You can fill your children’s heads with whatever myths and fairy tales you choose to indoctrinate them with. You can spout Scripture all day long to justify whatever path you choose to take in life. But if you enter the public square, and you open a business, you must serve anyone and everyone who meets your price. That’s the law. It’s really pretty simple.
John Dolan esq. says
I don’t think God made a mistake if someone is born attracted to a similar sex. You might be a baker but you arent going to roll this dough.
So not a story. Shows how far off course the ship is
Live and let live so be it
Christ wins says
So in a nutshell you want Christian’s to be tolerant of your choice of lifestyle? But you don’t want to be tolerant to allow Christian’s to practice their religion. Why didnt they go to a Jewish Baker or a Muslim Baker or a Buddhist Baker? Why be so insistent that a Christian Baker make the cake. Piere your right just because its law doesn’t make it right. That’s how I felt about the supreme court decision to deem same sex marriage legal.
You say they are homophobic but that would mean they are afraid of gays and that is no where near true. Throughout the history of the world society has tried to make Christian’s and Jews conform to society. Just as this Baker stood firm for their faith is just another example of wanting us to all bow to the golden monument that society puts up. Just as those three Hebrew boys defied society and said they would never bow. Neither will I. Neither should the Baker. I am ready to dance in the fire if I have to.
Concerned Citizen says
Personally I don’t care who loves who, Who sleeps with who or who marries who.
However unless the government is helping subsidize my business it shouldn’t have the right to tell me who I may serve or not. Part of the right you have owning a business and working hard to make it grow is choosing who your clients are. If someone comes in and you don’t like them then simply don’t serve them and try to make business elsewhere.
On that same note we as a people have the right to choose to go somewhere else. If we don’t like Starbucks or a local bakery then simply move on and go to Publix or Dunkin Donuts. Stop trying to force your views on other people and then sue whenever they disagree.
We live in a society that is highly dramatic and sue happy. This eventually has adverse consequences. if you want to sue it’s your right but eventually you make things un affordable for people.
There are more important things in the world to argue about. Like throwing gays off buildings. not making cakes.
Thank God your intolerant opinion means nothing. I’m all out of gay cake toppings. They are on permanent backorder.
I believe “marriage” should be turned over to the church. Marriage should be governed by the church. “Unionship” can be something the government has a role in. This would legalize spousal benefits, etc. if you want a cake so bad then open a bakery and let the gay supporters support your bakery. Spread your message in its own strength. Quit trying to tear down other peoples beliefs to spread your own.
Why is it OK for Liberals to refuse to serve people and Conservatives cannot? I say chalk one up for INDIVIDUAL FREEDOM OF CHOICE!
Sherry Epley says
Unfortunately the Republican majority Supreme Court has flung the door to increased prejudice wide open, again. A Tennessee hardware store owner posted a sign saying “No Gays Allowed” after this decision.
Our dear Jewish friend, who is now 98 years old, recently said “Our world would be much better off without any religion at all”. I was, in that moment, completely astonished. But, maybe, in the great wisdom of her advanced age, she has an excellent point.
Has “religion” been weaponized AGAIN? When you think of it in the context of all the wars, muaders and atrocities motivated by religion, this motivation for prejudice pales in comparison. BUT, that still does NOT make it right!
Typical bluster and blather from Pierre. The guy runs a small business – if he doesn’t want to make a cake for fags (to borrow your word) then so be it. Get over it, and go down the street to the gay baker. Simple stuff.
Thanks for alerting us to the can of worms that this ruling opens if it gets repeated and expanded in future cases. On its face, a dispute about a wedding cake seems so trivial as to be absurd. But what about the strict Catholic doctor or nurse working in a tax-supported hospital or clinic. Do they now get the option of refusing to perform an abortion or refusing to turn off life support on a brain dead patient? I think many Americans miss the point that our government and our Constitution are based on secular values. Because we have a very diverse population, government shouldn’t attempt to decide which beliefs receive preferential treatment. If there arises a conflict between a religious and a secular interpretation of law, the secular interpretation must and should prevail. If a religious person cannot handle that, they should move to a nation with a theocratic government. The Massachusetts Bay Colony experimented with form of rule for a century, and it was a deadly disaster — not only were “witches” in Salem hanged, but also Quakers in Boston. Native Americans were chased off their land. Until just a few decades ago, gays were routinely arrested, jailed, censored, subjected to strip searches, beaten by both police and civilians, fired from government jobs, expelled from the military, banned from schools, etc. Many of the gay-bashers were devout Christians simply following Old Testament rules. Let’s learn from history and not retreat to the “good old days” of religiously condoned torture.
Edith Campins says
A win for so called Christians. A loss for true Christians.
This is a victory for small business everywhere and people that do have a choice to stand your ground and honor your beliefs while not having something forced down a person throat by the government. . The gay community didn’t give this man the money to open his business, the gay community didn’t tell him what religion or interpretation he should honor. This business man made a choice to honor his religion and his beliefs.
@The Christian Taliban creeps out of the woodwork
and into the comments. You birds are a mirror image of the Islamic fundamentalists that you share a bible and oil tycoon sugar daddies with – you should get married.
Sally Sherman’s and your county government’s $3,661.20 per week partner: http://jmiresource.com/ministries/ Compared to the grift going on with the school system that is a rounding error:
The Orlando Sentinel spent months reporting on Florida’s scholarship programs, which will send nearly $1 billion to private schools this year. The Sentinel also reviewed thousands of pages of Florida Department of Education documents, court records and other materials in addition to interviewing dozens of people, including parents, students, school operators and policy experts.
Schools Without Rules: Private schools’ curriculum downplays slavery, says humans and dinosaurs lived together
Private schools that take Florida scholarships, or vouchers, are teaching children the Loch Ness monster may be real, God wisely kept Catholics from dominating North America and slaves who “knew Christ” were better off than free men who did not. The lessons are from three Christian publishers.
By Leslie Postal, Beth Kassab and Annie Martin
Steve Robinson said, “A very fine column in every respect. I am curious as to why “Anonymous” posts as “Anonymous.” If you have a beef, own up to it and stand behind your words, which, unless they are libelous, are protected by our Constitution. As far as the protection of religion goes, you are free to practice, in your home and your place of worship, whatever faith you embrace. You can fill your children’s heads with whatever myths and fairy tales you choose to indoctrinate them with. You can spout Scripture all day long to justify whatever path you choose to take in life. But if you enter the public square, and you open a business, you must serve anyone and everyone who meets your price. That’s the law. It’s really pretty simple.”
Amen. Thanks too to Pierre Tristam.
Now, stop picking the pockets of the rest us that know the difference between the Flintstones and reality. And too – do something about the Sally Sherman situation and the people who created it.
“And then they came for me.”
Perhaps YOU would eat a food product that someone was “forced” to make you, but I would NOT. Do you go to MacDonalds and Demand they make a YOU a Whopper?……..
I bet the bakers God would have made the cake.
A victory for choice. Plain and simple , in fact more simple than the common core math you must have use to cite the decision as not a lopesided one. Because in the non Leftest world 7 to 2 is not even close.
The USA is no longer a Country of freedoms when some communist demands that I MUST bake a cake for people who think that they are GOD’s gift to this world. Thanks to the Supreme Court for bringing this to the forefront and allowing our religious beliefs to be honored which is also a FREEDOM the last time I checked the Constitution specifically Amendment I.
elvis speaks truth and agree with nobody says
I believe the Supreme Court was torn between religious beliefs and discrimination. The bakers were upholding their religious beliefs. If you disagree with this verdict, you must also agree that Mohamed Ali should have jailed for his refusal to be drafted.