Prediction: Supreme Court Will Punt in Fake Marriage Cake Case
Every other option is unpalatable.
A frisson of delight ran through the Christian community when it was announced Monday that the Supreme Court will hear the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.
In 2012, Masterpiece Cakeshop owner Jack Phillips was asked to bake a fake marriage (or gmarriage) cake for two men. He refused. “I’m sorry,” he told the men, “but I can’t promote messages that violate my beliefs, though I’d be happy to sell you anything else.”
What did he get for his faith? He was hauled in front of a tribunal and told he must bake the cake.
According to the Alliance Defending Freedom, the judge ordering the forced fondant “held that coercing Jack to participate in a same-sex ceremony did not ‘unduly abridge [his] right to the free exercise of religion.'”
It was a long legal road from there to the Supreme Court, which said it will decide whether Phillips discriminated or not.
This is being interpreted as a kind of small victory. Why? Because there is the chance the Court sees reason and does the right thing.
Don’t count on it. I predict that the Supreme Court will punt.
The Court Punts
When the two same-sex attracted men came to Phillips and demanded a cake, fake marriage was not legal in Colorado. Nor was it yet legal in the US as a whole. The two men were going to go through a fake marriage ceremony in Massachusetts, where gmarriage was legal. And then the men were going to use the cake made by Philips in a reception to take place in Colorado.
There’s the out.
The Court may say that Phillips didn’t really “discriminate” because fake marriage was not yet legal in Colorado. He was still, they might argue, within his rights to refuse to knead the dough. Why?
The cake was not legally a fake marriage cake, just an ordinary cake, and by law, bakers are allowed to refuse to bake ordinary cakes.
This kind of decision will not be satisfactory. What orthodox Christians — and others — want to know is if they can freely decline to participate now.
Discrimination is necessary
Make no mistake: Phillips did discriminate: against a ceremony, not the two men. Religion by definition is discrimination. A religion eschews one belief and accepts another. A person following his religion acts on these defined beliefs. In other words, a religious man must discriminate if he wants to remain faithful.
He did not (and would not) refuse service because his customers were homosexuals. Phillips just knew the difference between real marriage and fake. His religion does not allow him to participate in fake marriages. He discriminated against that ceremony. He should have been allowed to do so.
That commonsense conclusion will be as obvious to the Court as it is to you, dear reader. That’s why the court will avoid it. Don’t forget that Anthony Kennedy, author of gmarriage, is still on the bench. It was he who said opposition to gmarriage “motivated by animus” and not religious conviction.
Sweet-talking Justice Kennedy
Dissenting on the gmarriage ruling two years ago were Justices Thomas, Alito, Scalia, and Roberts. Scalia has passed on to his reward, and Justice Gorsuch has taken his place. How will he vote? Who knows? But recall Gorsuch has said gmarriage is “protected by the Constitution” and is “absolutely settled law.”
In order for Phillips — and us — to prevail, Gorsuch and at least one other member of the court will have to agree forced cake baking is not Constitutionally mandatory. The best bet for this other member is Kennedy, with the other members of the Court voting reflexively left. That means Kennedy will have to be sweet-talked into some sort of compromise.
An Artistic Out
There’s another possible out. Phillips is being called an “artist” by those friendly to him or his case. In a sense, this is true, though we have to wonder why Caravaggio and Rembrandt never used colored sugar as a medium.
Anyway, as an artist, the argument goes, Phillips somehow had greater leeway in the “pieces” he created. Thus, the “First Amendment” protected his “free speech.” Well, that same Amendment already allegedly protected both his freedom of religion and his freedom of association. Meaning Phillips (and we) are allowed discrimination in choosing who we associate with, and the sorts of events we participate in. But those Amendment-guaranteed freedoms have long been gutted.
Still, the Court may see this as an appealing compromise. Florists, bakers, dress makers, photographers and the like would be protected in their “artistic freedom.” But restaurateurs, caterers, rental outlets and everybody else would be forced to comply with gmarriage — or be forced to find new jobs.
Whichever punt play the Court chooses, it won’t be the last word. Nothing short of full-blown surrender will satisfy the left. Bake the cake or be thrown outside the gates where there is weeping and gnashing of teeth.