Baked into the Court Decision
Terry H. Schwadron
June 5, 2018
The Supreme Court decision yesterday upholding a baker’s refusal to make a wedding cake for a Colorado gay couple on religious grounds is a weird one.
It neither says that religious objections trump its own rulings allowing gay marriage, nor does it provide any guidelines for the 21 states that have laws on the books to protect such religious objections on how to enforce the law.
Instead, Justice Anthony M. Kennedy, who has emerged in recent years as the court middle-man between more liberal and more conservative causes, crafted a ruling so narrow as to apply simply to this case and this particular set of circumstances.
Indeed, in its language, Kennedy’s needle-threading opinion managed to give as much hope as distress to both sides in this social debate. He found that while these particular circumstances showed to a majority that the state enforcement agency unduly stepped on the baker’s religious beliefs in ordering him to serve the gay couple, there is nothing here on which to draw more permanent or wide application.
It’s a brilliant example that bad cases make for bad court decisions, a thought that has stuck with my since an early college political science class on the court. It was a class with a new professor who became a mentor and that changed my outlook on the politics of the Supreme Court.
Justice Kennedy wrote that the question of when religious beliefs must give way to anti-discrimination laws might be different in future cases. But in this case, he said, Phillips did not get the proper consideration. Factors included the fact that Colorado had not yet adopted the still-new Supreme Court approval for gay marriage, and that the agency involved dismissed any religious grounds for blocking the couple.
Kennedy wrote, “The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws,” he wrote. “Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power” needed to be done in a setting where “religious hostility on the part of the State itself would not be a factor.”
Kennedy noted comments from Colorado commissioners that he thought denigrated Phillips’ faith, but rejected using the same standard in the future. Then the opinion says, “The outcome of cases like this in other circumstances 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,” Kennedy wrote.
So, politically, everyone can walk away happy and sad at the same time. We can expect that conservatives and liberal politicians will be fighting to get on the television airwaves to spin the results for their point of view.
The concurring opinions and the dissents are clearer. Still, what passed among nine justices was a real compromise.
On the other hand, I am disappointed. The reason we have this court system and a Supreme Court is to own up to our responsibility in this country to weigh conflicting principles. I don’t want a tie vote. I don’t want a wishy-washy opinion. I don’t want the justices to craft narrow victories that don’t apply to the next case.
What this opinion clearly says is that the Court doesn’t want to be the arbiter of social controversies. Then they should have just said that and set the case aside.
What this opinion does in real life is to prod each of us as citizens with rights and sensitivities to listen when someone says he or she or the business has some kind of moral problem with what is being asked of them, and to help craft compromise solutions.
Perhaps that baker should have been in touch with fellow bakers to determine if a competitor had no problems baking a celebratory cake for gay unions, and simply hand the couple a list of alternatives. Perhaps the couple involved should not have simply assumed that photographers, florists, musicians, and this baker have no religious sensibilities and simply asked first.
Instead, our litigious society insists on going right to the public mat because winning is more important that recognizing the Other.
Personally, the groups where I play trombone don’t ask many questions of anyone who might want to hire us to play. Just the idea of sorting out the sensitivities of the folks in the band about political life sounds exhausting. But we do ask what people might want to hear before we commit.