We Must Clone Clarence Thomas: The Lesson of SCOTUS’ Wedding Cake Decision

By John Zmirak Published on June 4, 2018

There’s been a battle online over whether or not to call Monday’s Supreme Court decision on a Christian baker “narrow.” The vote was 7-2, which isn’t narrow. But the scope of the ruling was. It seemed to say that in this particular case, the Colorado human rights commissars showed explicit, anti-religious bias. That tainted their case that a vital public interest was served by punishing this Christian wedding cake baker. (He would sell cakes to everyone, but wouldn’t design a specific, gay-wedding cake.)

But bureaucrats with a little more tact would likely get away with closing down Christian businesses. At least under the Court as it stands today.

SCOTUSblog explains the decision as follows:

[T]he justices today handed Phillips a victory, even if not necessarily the ruling that he and his supporters had hoped for. Kennedy, the author of some of the court’s most important gay-rights rulings, began by explaining that the case involved a conflict between two important principles: on the one hand, the state’s power “to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services”; and, on the other, the First Amendment rights to freedom of speech and the free exercise of religion.

As a general rule, Kennedy explained, the Supreme Court’s cases make clear that Phillips’ right to freely exercise his religion is not absolute, and can be limited by neutral laws that apply to everyone. But the critical question of when Phillips’ right to exercise his religion can be limited had to be determined, Kennedy emphasized, in a proceeding that was not tainted by hostility to religion.

Here, Kennedy observed, the “neutral and respectful consideration to which Phillips was entitled was compromised” by comments by members of the Colorado Civil Rights Commission. One commissioner, Kennedy pointed out, “even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” Moreover, Kennedy added, the commission’s treatment of Phillips’ religious objections was at odds with its rulings in the cases of bakers who refused to create cakes “with images that conveyed disapproval of same-sex marriage.”

The majority left open, however, the possibility that a future case could come out differently, particularly if the decisionmaker in the case considered religious objections neutrally and fairly. “The outcome of cases like this in other circumstances,” the majority closed, “must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

No, Silly. Here’s How You Do It.

We need to stuff the court with many more people who think like Justice Thomas

Kennedy, writing for the majority, lays out a little bread crumb trail. The next set of state or federal legislators can follow it. Be tactful. Restrain yourselves from openly comparing Christian religious beliefs to Nazi ideology or racism. Just set up rules that appear to be neutral. Then administer them using neutral language. And I’ll vote your way (wink, wink). See Kennedy:

While the issues here are difficult to resolve, it must be concluded that the State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners’ comments — comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order — were inconsistent with what the Free Exercise Clause requires. The Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside.

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But … Gorsuch

Justice Gorsuch’s opinion, while sound on the legal issues, shouldn’t raise our hopes too high. He asserts:

[N]o bureaucratic judgment condemning a sincerely held religious belief as “irrational” or “offensive” will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise.

What if the U.S. government concludes that it has a “compelling state interest” in squelching opposition to same-sex marriage or “homophobia”? Then it would find room to do so. As long as public servants stay mum about the religious reasons people give for dissenting. Now, a left that can’t resist applying the “c-word” to the president’s daughter isn’t big on tact.

The Hunt Continues

But we can’t count on that. The hatred today’s left feels toward orthodox Christianity is fanatical. Remember how Inspector Javert, in Les Misérables, sought pretext after pretext for imprisoning Jean Valjean? So the left will keep hunting Christians. Justice Kennedy has just told them the opening and closing days for hunting season.

It isn’t just our freedom at stake. It’s everyone’s. See the opinion of Justice Thomas.

There is an obvious flaw, however, with one of the asserted justifications for Colorado’s law. Ac­cording to the individual respondents, Colorado can com­pel Phillips’ speech to prevent him from “‘denigrat[ing] the dignity’” of same-sex couples, “‘assert[ing] [their] inferior- ity,’” and subjecting them to “‘humiliation, frustration, and embarrassment.’” … These justifications are completely foreign to our free-speech jurisprudence. States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Johnson, supra, at 414. A contrary rule would allow the govern­ment to stamp out virtually any speech at will.

In Obergefell, I warned that the Court’s decision would  “inevitabl[y] … come into conflict” with religious liberty, “as individuals .. are confronted with demands to partic­ipate in and endorse civil marriages between same-sex couples.” … This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the free­dom of speech could be essential to preventing  Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.”  If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.

The Tyranny of the Snowflakes

If the government can stifle free speech, or commerce, or association, because allowing it might “embarrass” people, we truly are lost. America will have abandoned the Anglo-American tradition of liberty going back to the Magna Carta. Instead, we’ll be stuck with a Progressive nanny state that corrals, punishes, and even imprisons dissenters.

The hatred today’s left feels toward orthodox Christianity is fanatical. Just as Inspector Javert, in Les Misérables, sought pretext after pretext for imprison Jean Valjean, so the left will keep hunting Christians. Justice Kennedy has just told them the opening and closing days for hunting season.

Nothing against Justice Gorsuch, but it’s clear we need to stuff the court with many more people who think like Justice Thomas. It’s critical we keep control of the White House and Senate, and press the President to find more judges like the heroic Mr. Thomas. And Mr. Trump needs to be very, very careful. He should remember that advisors lied to Ronald Reagan about Anthony Kennedy’s views. That’s how we got an absurd decision like Obergefell in the first place.

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  • tz1

    The thing about snoflakes is that we are called to be both salt and light. Either tend to melt snowflakes.
    The only problem is the meltdown tends to be rather, dramatic.

  • tz1

    Gorsuch joined in Thomas’ concurrence. While maybe not a full clone, it is close.

    • Garrett

      Yea. Please revise your article. Gorsuch’s opinion is excellent, and you have stated nothing of substance against him.

  • Patmos

    “the rights and dignity of gay persons”

    Not creating a specialized cake for a person is hardly an infringement on their rights, and respectfully referring them elsewhere is not even close to attacking their dignity.

    It was a big mistake to grant LGBT protected class status, especially when that legal judgement overlooks so much, but when you’re such a lazy slob like Ruth Bader Ginsberg taking the easy way out is sort of the only option.

  • Howard Rosenbaum

    The question of “dignity” in these sort of SCOTUS decisions is a bit of a paradox.
    Sure, God dignified man by virtue of His creating them in His image. He further substantiated that unprecedented act of creative prowess when He chose to become “one of us” . The incarnation has & never will be rivaled . Not even by God Himself.
    The paradox comes in to play when “mere men” operating on the premise that “dignity” is not associated w/God’s design for humanity is neglected.
    Hey, we’re not a theocracy . Right, but we are a nation governed by “moral law”. At least thats my understanding of the founders intent. So, when issues of “the dignity of man” are conflated w/behaviors that by “a higher standard” are undignified to say the least there is inevitably conflict.
    Therein lies the problem. Personally were I that baker I probably would have been “free” to choose to bake that strategically manipulative cake request. Though I fully support the bakers right to refuse based on his sincerely held perspectives . The foundational premise of which I completely concur with. There is no dignity in “gay marriage” where moral precedent is followed. Or otherwise.
    So, since we as a nation have to some degree seemingly lost our “moral compass”, a correct application of this “dignity thing” is somewhat lost as well. Kind of makes this whole “free speech” thing sort of a mute point . At least where both the “faith of our founding fathers” & the foundational material upon which this nations moral fiber was fabricated are concerned. Particularly where that “dignity” thing is in question by the highest court in the land ….

  • Ray

    This is a historic day for America. How about a new holiday …American Cake Day?

  • John A.

    Anthony Kennedy… modern day Balaam.

  • James

    Many people, especially the young, are increasingly hostile to religion. They see religion as no more than a political movement/social club. As a result, they tend to hold the following views:

    1. Religious freedom is not a fundamental human right, but a privilege granted to a powerful special interest.

    2. Religious beliefs are no more than a self-serving cover for bigotry and prejudice or, at best, a convenient tax shelter. Christian support of Trump proves it was never about spiritual things.

    3. Religion is not something beneficial to society that should not be subject to government interference, but something harmful to society that while tolerated, should be subject to government regulation, like smoking. The church is so corrupt, it must be regulated by the state for the good of society.

    Many had negative experiences either with the church or with Christians in their formative years and are determined to keep that from happening in the future.

    • John Davis

      This is exactly why I believe the evangelical embrace of Trump will prove so disastrous to freedom of religion in America, and consequently, the world. We have “proved”, to those who already hate us for other reasons, that we are just a political club who will excuse anything, as long as it’s “our guy.” We’ve thrown away all moral standing in our defense of someone who is totally indefensible, but will fight for our rights–as long as it’s beneficial to his interests.

      • Muggs37

        John Davis – in defense of the ‘indefensible’ may I mention King David, King Solomon, Moses, – all chosen by God to be leaders of His people? Please point out to me where they were ‘perfect’.

        • John Davis

          None of them were perfect, and they were all ordained by God to fulfill His purposes in their time, as is President Trump. God also ordered Nathan to call David to account for his sin, not defend it!

          My concern is when we defend President Trump’s misdeeds rather than call him out on them. We need more Nathans and Micaiahs, and fewer “Zedekiah the son of Chenaanah”s. The former praises the good and condemns the evil–often actions done by the same individual. The latter not only encourages wrongdoing, but also condemns and opposes those who speak the truth to power.

          We do need to encourage the good he does, like appointing a strict constructionist jurist to the Supreme Court, and stopping the US dollars going to the UN Fund for Population and Development, which funds abortions.

          So let’s not confuse the man with his actions. We can and should respect the God-sent authority by doing both things: 1) speak out against actions that contradict God’s clear revealed will for the way we are to treat our neighbor and the alien among us and, at the same time, 2) praise the actions which do align with God’s clear revealed will, such as the defense of the helpless unborn.

          It’s the sycophantic praise of all he does and the doubling down of attacks on those who call him to account that trouble me. We must not sacrifice our ability to proclaim the clear, not-of-this-world, kingdom of God on the altar of short-term political gain. Psalm 146 and Isaiah 50 contain clear warnings for those who put their trust in the wrong place, yet wonderful comfort for those who are willing to trust in God’s power and vindication alone.

    • Richard Malcolm

      Many had negative experiences either with the church or with Christians in their formative years and are determined to keep that from happening in the future.

      I think there’s always been a certain amount of that.

      The real difference now is a secular culture which has displaced cultural Christianity as the dominant social force. Now there’s active peer pressure to not only be areligious, but even, in many places, anti-religious. Most humans, especially young ones, find peer pressure hard to resist.

  • Richard Malcolm

    I have to say, though, that Gorsuch has come closer to being a second Thomas than I ever thought we’d see on SCOTUS.

    But the real problem is not a lack of Clarence Thomases. The real problem is far too few (and diminishing in number) virtuous votaries.

    • Willam Nat

      virtuous votaries?

      • Richard Malcolm

        A fancy way of saying that if you lose the culture, you’re not going to win the politics.

  • “If the government can stifle free speech, or commerce, or association, because allowing it might “embarrass” people, we truly are lost.”

    How far do you want to take this? You’re OK with someone rejecting a mixed-race couple for religious reasons? Or a black couple? Or a Christian couple?

    When you open a store front, you need to serve everyone (with limited exceptions like selling alcohol or cigarettes to minors). If that’s a problem for your religion, there’s an easy solution.

    • Willam Nat

      ” If that’s a problem for your religion, there’s an easy solution.”

      Oh yeah, your solution is for Christians to lose their businesses or their jobs or their occupations. The same thing is occurring now in Canada where the push is to force Christian doctors to murder patients via euthanasia or GET OUT of the profession, i.e only killers need apply. Sorry, but that attitude is not acceptable in a non-Nazi society.

      • I’m simply saying, “It’s not my fault—my religion makes me discriminate, so it’s OK” doesn’t work.

        I have no desire to see Christians lose their businesses, but I have no tolerance for discrimination. Homosexuals help pay for the utilities and roads that allow the baker to run his business just like you and I do. Isn’t it fair that the homosexuals be treated like any other customer?

        When a baker discriminates against someone in a protected class, many Christians are fine with it if it’s a homosexual, but probably not if it’s a mixed-race couple of a black couple. What discrimination is acceptable in your mind?

        • Willam Nat

          So if a Nazi demands a Jewish baker make a cake with swastikas on it that’s okay? Otherwise it would be discrimination? If a Muslim baker is forced to bake a cake with pork fat that’s okay? Otherwise it would be discrimination? What you call “discrimination” is NOT the most evil thing in the world.

          In your words: Nazis and Muslim-haters “pay for the utilities and roads that allow the baker to run his business just like you and I do. Isn’t it fair that they be treated like any other customer?”

          • Does the Jewish baker make swastika cakes for other people? If so, then he must sell them to Nazis as well. Does he not make swastika cakes at all? Then there’s no problem.

            Do you even understand the problem here? If you already make something, you can’t discriminate against who you sell it to. Not a hard concept, is it? You can’t force a news stand to sell porn, you can’t force a shop to sell alcohol, and you can’t force a deli to serve pork … but if they do sell those things, they can’t discriminate by customer.

          • Muggs37

            No, Bob you are wrong. In this particular instance it was a SPECIALIZED type of cake DECORATION being requested. The baker is not bound to use his creative talent to make something his sincerely held religious belief tells him is not right. The real problem here is that the lgbt lobby wants to FORCE everyone to bend to their will. NOWHERE in the First Amendment is there room for denying a person his religious belief and it is EXPRESSLY stated it cannot be abridged. If someone is homosexual and/or a lesbian, that is a CHOICE to a particular style of living that has NEVER been acceptable to many religious individuals.

          • The baker is not bound to use his creative talent to make something his sincerely held religious belief tells him is not right.

            He already makes wedding cakes. The issue is who he will sell them to.

            NOWHERE in the First Amendment is there room for denying a person his religious belief and it is EXPRESSLY stated it cannot be abridged.

            So the Mormons can have polygamy? Nope. Religious freedom is sometimes abridged when it clashes with laws.

            If someone is homosexual and/or a lesbian, that is a CHOICE to a particular style of living that has NEVER been acceptable to many religious individuals.

            So they’re not actually homosexual, just acting that way? Weird, since people like you are determined to make their lives miserable, why anyone would deliberately choose that.

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