A Mild & Temporary Victory Over Gmarriage
Clear & Impermissible Hostility Toward Sincere Religious Beliefs
Well I’ll be dogged. The Supreme Court, led by (in)Justice Kennedy himself, said you don’t, at least sometimes, have to bake that cake. Here is the ruling (first printing).
Given this is (in)Justice Kennedy, the ruling is not a complete victory for sanity, reality and religion. But it is a partial victory. And considering Kennedy’s past “reasoning,” it is a delightful victory because few expected it.
I did not, predicting SCOTUS would punt and claim baker Jack Philips was in his rights refusing to bake a cake when gmarriage was at the time not recognized in his state. (Gmarriage is government-defined marriage, which is not actual marriage, which can only be between a man and woman.)
I was close, though. The court did say that “given the State’s position at the time [of not recognizing gmarriages], there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful.”
It All Depends on “Some”
That reason was not decisive, though. Instead the majority ruled that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”
Note carefully that “some.” That implies that religious and philosophical objections to fictional marriages are in some cases not protected forms of expression.
And just what might these extraordinary cases be, monsieur Kennedy? He never says. This leaves a gap wide enough to toss a three-tiered cake through. Kennedy’s watery language will encourage the bringing of suits by non-procreative-sex fanatics who are sure their situation is the exception that requires Christians to put a pinch of incense into the flames.
Kennedy’s feigned shock that non-procreative-sex activists used his original gmarriage decisions to disparage Christians is nauseating. All his talk of love and irrational animus guaranteed that they would fly at Christians with talons sharpened.
Of Two Minds
Thus his tut-tutting carries little weight when he writes:
[S]ome of [Colorados’] commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.
What? It was Kennedy himself who in Obergefell — the ruling that imposed gmarriage nationwide — implied that opposing gmarriage was hateful. You cannot blame State Commissions for following his lead. They thought they’d get away with it.
Still, he allowed himself to say:
The government, consistent with 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.
All We Need Is Wuv
Maybe this is Kennedy staying with his love theme. But the Supreme Court, though it can impose gmarriage, cannot impose love. Still, he tries. “Our society,” he writes, “has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.”
Kennedy has come to this recognition, not all of society. Two men are inferior in dignity and worth with respect to marriage compared one man and one woman. Maybe this is hurtful language. It is also true language.
Kennedy also wants to uphold religious freedom. He agrees clergy cannot be “compelled” to perform gmarriages. Yet he aches to “confine” this clerical “exception” (my emphasis) lest those enslaved to non-procreative passions suffer “serious diminishment to their own dignity and worth.”
Again, notice he defines as an exception holding to reality, and then only in the name of religion. Yet you cannot have it both ways. You can have what is true, or you must impose by constant threat of force a fiction.
The Lack of Free Association
The remainder of the Court’s opinions reflect this struggle to square the circle. Justice Gorsuch and Alito write separately about the obscure idea of the “mental state” of bakers as they complied or refused to sell sugared delicacies. This is all beside the point.
If the Court never abandoned freedom of association — with its implied freedom of disassociation — we’d never have to have these impossible debates. Now mine is a minority opinion, but consider that if there was true freedom of association, any baker could refuse any customer, and any citizen could refuse to buy any product (such as health insurance). The government would have never arrogated itself the “right” to impose gmarriage.
True freedom of association is dead. Even mentioning its revivification causes shrieks of terror. Why, remove compelled association, which is to say “anti-discrimination” laws, and slavery returns! Sigh.
Not even Justice Thomas (who wrote on free speech) recognizes the full import of the myriad laws banning “discrimination” based on “sexual orientation.” Compelled association based on “sexual orientation” will cause more rancor and lead to the loss of more souls than you realize.
Scoff if you like, but wait and see.