The Supreme Court’s decision in Masterpiece Cakeshop has to be described as narrow. It answered none of the major doctrinal questions raised by the baker’s claims. Justice Kennedy did not say whether baking a cake is constitutionally-protected expression. He did not discuss whether public accommodations laws are unconstitutional violations of the First Amendment’s guarantee of the free exercise of religion. He declined to generalize about how to address a potential conflict between the freedom of religion and equal protection. Instead, he wrote an opinion about how the procedure followed in this case was faulty.
Still, even this narrow decision, which has limited direct precedential value, is dangerous for three reasons.
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First, at the end of the day, two queer men, Charlie Craig and Dave Mullens, had to suffer the indignity of being denied service just because they are gay. That the Supreme Court denied them vindication (for now) cannot be lost in the fact that the Court didn’t make any awful doctrinal conclusions. These two men were victims of discrimination in a personal and direct way, an experience that has been shown to have negative psychological effects. But even if it didn’t, even if Charlie and Dave are strong enough to recover and move on, no one should have their identities turned against them.
Second, the decision will have two unfortunate effects unfold over the next few years. First, there may be a chilling effect among queer people who want to get married. Many media outlets are reporting on this case with clickbait headlines that cause anxiety and misunderstanding among readers. Many just know that the Court sided with the anti-gay baker and allowed him to deny service to a gay couple. This result, and the uncertainty associated with the opinion’s narrow reasoning, will caused confused queer people to shy away from pressing their rights, not knowing what they can and cannot do. On the other side of the ledger, this decision is an invitation to homophobic litigation. Masterpiece did not answer the underlying question of whether equality legislation trumps the free exercise of bigotry. But allowing the Christian baker to deny service to gays in this case is going to encourage the religious right to press the case, to encourage Christian business owners to continue denying service to queer people, until they can take another, cleaner case back to the Supreme Court.
Third, the opinion includes troubling conclusions. As we discussed yesterday, the Court found that statements from Commissioners sitting on the Colorado Civil Rights Commission evidenced so much anti-religious bias that they denied the Christian baker a fair, impartial hearing. But those statements don’t really evidence bias. Here was the most offending statement:
I would also like to reiterate what we said in the hearing or the last meeting. 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.
In reaction to this, the Court said, “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.”
But that is not at all what the Commissioner did. His comment called out using religion as a pretext for discrimination. And besides, the Commissioner is one hundred percent correct. Christianity justified the Holocaust. Religion was used to justify slavery. Religion was used to justify Jim Crow, apartheid, and laws against interracial marriage.
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This raises an important question. If saying something true, yet critical about religion as an institution is an example of expressing hostility toward religion, then is every comment critical of religion evidence of bias? Are we never allowed to say anything negative about the harms that can be wrought by fundamentalism? It’s now hard to imagine the forces of equality getting a fair hearing if no one can say anything negative about the forces of bigotry when they use religion to justify their hatred.
Granted, Masterpiece Cakeshop is neither a huge triumph for bigotry nor a devastating loss for equality. But it is not harmless. It allowed bigotry to win today and may have several dangerous effects.
