By David French
Monday, June 04, 2018
Since the rise of the gay-marriage movement, it has
become fashionable to decry dissenters as haters and bigots, to attempt to
write them out of polite society in the same way that the larger American body
politic has rightfully rejected the Klan. Politicians thunder against Christian
bigots. Media organizations put the words “religious liberty” in scare quotes,
as if the expression of deeply held religious beliefs is a mere pretext, used
to conceal darker motivations. And ideologues in state agencies give full vent
to their rage, mocking faithful Christians as if they stand in the shoes of
slavers and murderers.
Today, the Supreme Court said, “enough.” Today, the Court
breathed a bit of life back into religious-liberty jurisprudence. And the
justice who did it is none other than Anthony Kennedy, the architect of the Obergefell opinion and the justice most
responsible for the gay-rights revolution.
Here’s how he did it. Jack Phillips, owner of Masterpiece
Cakeshop, raised two constitutional defenses to Colorado’s charge that he
unlawfully discriminated against a gay couple when he refused to custom-design
a cake for their same-sex wedding. He first argued that creating a custom cake
constituted an act of protected expression under the First Amendment, and he
could not be compelled to exercise that expression to support a same-sex
wedding.
The Court essentially punted on the question, noting that
it raised complex and difficult issues. To the extent that the dicta provides
any guidance going forward, it seems that the greater the obvious expressive content, the greater the constitutional
protection. In other words, a cake that contains words or symbols might enjoy
greater protection than a cake with no obvious expressive meaning. But that’s
speculation. The case wasn’t decided on that basis.
Instead, the Court focused on Phillips’s second claim,
holding (by a 7–2 margin) that Colorado violated his right to free exercise of
religion when it held him in violation of state public-accommodation law.
Justice Kennedy focused on two critical aspects of the case to support his
ruling. He first condemned anti-religious comments made by state commissioners
during the hearings before the Colorado Civil Rights Commission. He especially
singled out a commissioner’s claim that “freedom of religion” has been used to
“justify all kinds of discrimination throughout history,” including slavery and
the Holocaust. The commissioner called Phillips’s religious-freedom claim “one
of the most despicable pieces of rhetoric that people can use.”
Kennedy’s response was devastating:
To describe a man’s faith as “one
of the most despicable pieces of rhetoric that people can use” is to disparage
his religion in at least two distinct ways: by describing it as despicable, and
also by characterizing it as merely rhetorical — something insubstantial and
even insincere. . . . This sentiment is inappropriate for a Commission charged
with the solemn responsibility of fair and neutral enforcement of Colorado’s
antidiscrimination law — a law that protects discrimination on the basis of
religion as well as sexual orientation.
Kennedy could have stopped his opinion right there. As he
notes, there was no objection to those comments from other commissioners, and
they weren’t disavowed at any time during the proceedings. One of the actual
adjudicators of the case was expressing outright hostility to Phillips’s religious
expression, a situation different from and more egregious than lawmakers’
expressing hostility to religious faith when passing legislation.
Had Kennedy stopped his opinion at that point, Phillips’s
victory would have been important, but profoundly limited. The obvious response
would be for the commissioners to reconsider the case, cleanse their rhetoric
of outright hostility, deliver the same result on a cleaner record, and put the
more difficult free-speech claim right back in the Court’s lap. But Kennedy
didn’t stop. He found a separate ground for concluding that Colorado was
motivated by anti-religious animus, and that separate ground will make it
difficult for states to take aim at “offensive” religious exercise, even when
it occurs in a commercial context.
It turns out that the state of Colorado had protected the
right of bakers to refuse to create cakes with explicitly anti-gay messages. Here’s
Kennedy again:
On at least three other occasions
the Civil Rights Division considered the refusal of bakers to create cakes with
images that conveyed disapproval of same-sex marriage, along with religious
text. Each time, the Division found that the baker acted lawfully in refusing
service. It made these determinations
because, in the words of the Division, the requested cake included “wording and
images [the baker] deemed derogatory.”
But wait. Can the state make those distinctions? Can it
protect the right of one baker to refuse an “offensive” message without
extending protection on an equal basis to other bakers? Kennedy’s words are
key:
A principled rationale for the
difference in treatment of these two instances cannot be based on the
government’s own assessment of offensiveness.
Just as “no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of Ed. v. Barnette,
319 U. S. 624, 642 (1943), it is not, as the Court has repeatedly held, the
role of the State or its officials to prescribe what shall be offensive. . . .
The Colorado court’s attempt to account for the difference in treatment
elevates one view of what is offensive over another and itself sends a signal
of official disapproval of Phillips’ religious beliefs.
Let’s put it differently. All bakers — regardless of
religion — have the same rights and obligations. At the same time, gay and
religious customers enjoy equal rights under state public-accommodation
statutes. Any ruling the commission imposes will have to apply on the same
basis to different litigants, regardless of faith and regardless of the
subjective “offensiveness” of the message.
This is a severe blow to the state. It hoped for a ruling
declaring that the cake wasn’t protected expression and a free-exercise
analysis that simply ratified the public-accommodation law as a “neutral law of
general applicability.” Such a ruling would have permitted the favoritism on
display in this case. It would have granted state authorities broad discretion
to elevate favored messages and suppress dissent, all while operating under the
fiction that they weren’t suppressing protected expression or religious
exercise.
Instead, civil-rights commissions now have to understand
that restrictions on religious bakers will carry with them the same implied
restrictions on secular bakers, and the protections given gay customers will
extend on an equal basis to religious customers. In other words, the Court not
only prohibited favoritism, it imposed a high cost on censorship.
No, the Court did not issue the sweeping free-speech
ruling that many advocates hoped for and others feared. Instead it issued a
ruling that reminded state authorities that people of faith have the exact same
rights — and are entitled to the exact same treatment — as people of different
faith or no faith at all. And it did so in an opinion that decisively rejected
the exact talking points so favored by the anti-religious left.
The Lord works in mysterious ways, and it is no small
irony that the same justice who just struck a blow for the dignity of the
faithful is also the man most responsible for creating the constitutional right
to same-sex marriage. State bullies beware, when Justice Kennedy declared in Obergefell that the First Amendment
still protects religious people as they seek to teach and uphold those
“principles that are so fulfilling and so central to their lives and faiths,”
he meant what he said. Tolerance, it appears, is not a one-way street.
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