Tag Archives: precedent

A Decision That Isn’t

Well, the United States Supreme Court just emulated Solomon.

Remember the biblical story in which two women claimed to be the mother of a baby, and demanded that Solomon decide between them? He proposed to cut the baby in two, knowing that the real mother would withdraw her claim in order to protect the baby. The lesson from that parable? Solomon was a smart guy.

So is Justice Kennedy.

The case before the Supreme Court was poised to add lots of fuel to America’s already raging culture war. In 2012, a Colorado baker had refused to create a wedding cake for a same-sex couple, citing his religious beliefs. (This wasn’t a refusal to sell a cake that already existed; the baker had evidently been asked to create one especially for the couple. He argued that doing so would amount to compelling his speech in favor of same-sex marriage, which he opposed.) At the time, Colorado did not recognize same-sex marriages, but the state had a civil rights law that included protections for LGBTQ citizens, and the state’s Civil Rights Commission ruled that the baker had violated that law, and intermediate courts upheld the Commission.

The Supreme Court reversed, ruling 7-2 for the baker. Sort of.

Although it is hard to fault the logic of the dissent by Ruth Bader Ginsberg and Sonia Sotomayor, who argued that baking a cake is not the expression of an opinion, the majority decision in the Masterpiece Cake case was a masterpiece. (Okay, terrible pun.) As USA Today reported,

the long-awaited decision did not resolve whether other opponents of same-sex marriage, including bakers, florists, photographers and videographers, can refuse commercial wedding services to gay couples. In fact, the court on Monday scheduled a similar case involving a Washington State florist for consideration at their private conference Thursday.

The decision reiterated the rule that business owners generally cannot deny equal access to goods and services under a neutral public accommodations law. The result in Masterpiece turned instead on the Court’s finding that the baker had been treated prejudicially by Colorado’s Civil Rights Commission– that the Commission had demonstrated a hostility to religion in its treatment of the case.

Kennedy reasoned that Phillips, in refusing to create a same-sex wedding cake, had good reason to believe he was within his rights. State law at the time allowed merchants some latitude to decline specific messages, such as those demeaning gay people and gay marriages.

The government cannot impose regulations hostile to citizens’ religious beliefs, the ruling said. But it was limited to Colorado’s treatment of Phillips; had the process been fair, Kagan and Breyer likely would have been on the other side, and Kennedy would have had a tougher decision to make.

“A vendor can choose the products he sells, but not the customers he serves — no matter the reason,” Kagan wrote, joined by Breyer. “Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples.”

The plaintiff won. He gets a new hearing. However, the ruling is unlikely to affect other claims of discrimination by same-sex couples.

The Court’s decision deprives the Religious Right of a grievance that would have been useful for fundraising and political organizing, it does no damage to gay civil rights generally, and it is too narrowly tailored to be used as a precedent by others claiming a religious right to discriminate. If you are going to “lose” a case, this is clearly the way you’d want to lose it.

Well done, Supremes.