The Supreme Court’s majority was right – provided you value basic principles of the freedom of association and property rights – to decide in favor of the master baker who declined on religious grounds to bake a cake for a same-sex wedding.
You might think, then, that reading the decision (Masterpiece Cake Shop vs. Colorado Civil Rights Commission) would be an exhilarating experience, perhaps including a ringing endorsement of a pillar of freedom itself: the right not to be forced into involuntary commercial servitude.
Sadly, the opposite is the case. The majority opinion underscores just how far we’ve traveled from basic liberal values. Reading this case literally, we can conclude the following. If you want to exercise property rights and behave as if you are free, according to the Supreme Court, you need to get religion right away and hope that the bureaucrats adjudicating your case put you down as a monster for that very reason. Then you can narrowly escape prosecution.
Otherwise you must comply. If you take the majority opinion on face value, had the deliberations in Colorado been undertaken with no invidious discrimination against the faith of the baker, the decision would have gone the other way.
A Depressing Read
At no point in the decision do we find anything like a basic defense of the freedom of association, much less property rights and commercial freedom. Just the opposite. At every point, the majority opinion presumes the obligation on the part of private enterprise to comply with every dictate, no matter how much this intervenes in the rights of business.
The entire case turned in the right direction only on some outrageous comments made by a member of the Colorado Civil Rights Commission, who uttered the following gibberish concerning a basic matter of religious conscience. The Commissioner is alleged to have said the following.
Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.
The egregious statement by the Commission stands alone and probably needs no comment. Even so, it requires an amazing level of intellectual obtuseness to casually toss off the claim that the Holocaust came about due to the claimed right of religious freedom. It seems nearly pointless to observe that the exact opposite is the case, that in fact the dark occultism of Nazi ideology warred against religious liberty as its very core, rounding up Jews and then later attacking all people of faith who declined to pay fundamental obeisance to the murder state.
In any case, because of this statement, the Court concludes that it cannot “avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication.” Indeed. Therefore the enforcement in this particular instance violates “the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” The baker was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.”
A truly impartial observer might say that the baker was entitled to more than that. He was entitled to run his own business according to the dictates of his own conscience and business sense, bearing the consequences (good or bad) from an economic point of view. In other words, he was entitled to participate in the free enterprise system.
Clarity from Thomas
Reading through all the documents in the case, one is struck by the beauty and clarity of Justice Clarence Thomas’s separate opinion deciding with the majority. He very rightly sees the whole matter as settled as a matter of free speech of the sort that any creative person deserves.
Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palate with a paintbrush and baker’s whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. Examples of his creations can be seen on Masterpiece’s website.
Thomas then proceeds through a long history of the wedding cake in a narrative that would make a great article on its own. The point is that, “The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message” – and one arguably more poignant than cases previously decided by the Supreme Court. No question, he proves, this is a case of free speech, and “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.”
Why, asks Thomas, should religion figure into the court decision at all? This is a matter of the right of political dissent, particularly when such dissent is informed by religious concerns. This became problematic in light of the Court’s decision that required a top-down imposition of the right to same-sex marriage, which, no matter one’s personal opinion on the matter, remains a matter of controversy. Some people in the marriage industry would end up being coerced against their will. Whether and to what extent this decision conflicted with religious freedom is something the court did not consider enough. Thomas writes:
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.” 576 U. S., at ___ (dissenting opinion) (slip op., at 15). 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.” Id., at ___ (ALITO, J., dissenting) (slip op., at 6). If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.
While the opinion is truly satisfying for its clarity and logic, there is still another consideration that does not figure here at all. It is this: property rights. To whom does the cake shop belong? To whom does the labor of the baker belong? There can only be one of two answers: the owner or the state. That this did not come up at all is chilling. It should have been central to the case.
To be sure, we don’t talk about this subject much, given the long precedent of public accommodation laws emerging from the civil rights era. I don’t happen to think these laws make a good precedent and have done more to cause harm to the cause of social peace and genuine civil rights. That said, the laws restricting the decision rights of business came about in light of a terrible history of slavery, state segregation, mandatory exclusion, the widespread and state-enforced second-class treatment of non-white Americans. The context is important.
The precedent, however, of overriding the autonomy of private business to make their own decisions concerning business practices has led to unwarranted social conflicts and fed many rounds of political upheaval, the most recent one of which is illustrated in this decision. Yes, the court decided the right way, but narrowly and not in a way that should calm the worries of anyone who believes in basic freedoms.
The core question here is whether private businesses can make their own judgments over the use of their own property. The 13th Amendment brilliantly declared as follows: “neither slavery nor involuntary servitude...shall exist within the United States, or any place subject to their jurisdiction." That statement, enshrined in the very document that the Supreme Court is supposed to guard and protect, should have been enough to cause the court to declare that the baker can refuse to bake a cake.