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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