So I was at the gym last week (old people with arthritis do things like that) and I fell into a conversation with another old-timer about the 7-2 U.S. Supreme Court ruling in Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission (.pdf here). She wanted to know what I thought of the decision.
These kinds of conversations happen all the time here in Oak Ridge, Tenn., in part because my column has run for three decades in the nearby Knoxville News Sentinel, a newsroom that played a key role in the birth of "On Religion." I'm that religion guy.
Anyway, I said that it appeared America's one true king -- Justice Anthony Kennedy -- couldn't decide how to settle this clash between the First Amendment and LGBTQ rights, two issues at the heart of his high-court legacy. So he punted and wrote a narrow opinion, focusing on the anti-religious bias exhibited by Colorado officials. Who knows what will happen next?
I didn't take notes, but this Oak Ridger replied: "Well, I just don't think that guy could refuse to do business with a gay couple like that."
I asked if she knew that baker Jack Phillips offered to sell them anything in his store for their wedding, including cookies, brownies or basic wedding cakes. What he said he couldn't do -- because of his traditional Christian beliefs -- was make one of his special, handcrafted designer cakes that included themes and details linked to their same-sex union rite.
Well, I don't think it's right for him to single out gays like that, said the woman.
Actually, I noted, Phillips has turned down lots of jobs because of his evangelical beliefs, including making Halloween cakes, cakes containing alcohol, risqué bachelor-party cakes, atheist event cakes and, yes, cakes with slogans attacking gay people. He doesn't reject classes of people, but he does reject delivering specific messages he believes are linked to religion.
This Oak Ridger was silent for a moment, then said: "Well, I haven't heard any of that on CNN."
Maybe I should have told that story in this week's "Crossroads" podcast (click here to tune that in), because it's a perfect example of how simplistic press coverage has helped shape -- "twist" might be the right word -- grassroots discussions of religious-liberty issues.
Ever since the ruling was handed down, there has been an amazing barrage of opinions from activists on both sides. There has been some world-class confusion as well.
As a rule, on one side there have been gay-rights activists and, on the other, those advocating an old-school liberal approach to the First Amendment and the free exercise of religious beliefs (many who were part of the Bill Clinton-era coalition backing the Religious Freedom Restoration Act).
But this is where things get complex. This narrow, "punting" decision has led to remarkable debates -- even among cultural conservatives -- about how it will affect the future.
You really need to listen to the podcast. However, here is a quick sketch of the four major camps that host Todd Wilken and I discussed this week.
(1) There are people who openly celebrated the decision, even if it was only a "dodged bullet" in which Kennedy didn't settle the big issues. Their bottom line: Any kind of win is a win. For example, check out the opening section of this think piece from the National Religious Broadcasters.
(2) There were religious-liberty professionals who saw the narrow nature of this victory, but --on the plus side -- have argued that there are many pending cases in which it will be easy for lawyers to demonstrate the reality of negative prejudice and animus against traditional forms of faith. Here is the top of an analysis by one of my favorite writers, David "Harvard Law School grad" French of National Review:
I’m noticing an interesting split in conservative opinion on the importance of Masterpiece Cakeshop. The religious liberty litigators I talk to tend to be more optimistic about its implications than other conservatives. They know the factual records of their own cases, and they know that the records are often littered with examples of state bias and double standards. Case in point, yesterday the Becket Fund for Religious Liberty filed a reply brief in a lawsuit against Wayne State University citing Masterpiece and calling out an egregious double standard. (Thanks to Ryan Anderson for the tip.)
(3) Then there are people who are absolutely sure that Kennedy punted and avoided the big questions. However, they took comfort in the fact that he was forced to admit that the big questions are still out there and must be decided.
Thus, read these Kennedy quotes and pay attention to the phrases I have highlighted:
Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth," Kennedy said. "For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.
Kennedy also wrote this:
"The outcome of cases like this in other circumstances must await further elaboration in the courts. ..."
So what is the sum total of these "some" passages? Note that Kennedy says that people on both sides face compromises.
Well, it's safe to say that at some point, some judges in some court will get to rule on some legislation from somewhere that attempts to drafts some RFRA-like guidelines to attempt to balance the rights of believers on both sides of the religious liberty vs. sexual liberty battles. This will produce some additional tensions and conflict.
(4) Finally, there are people -- on the cultural left and right -- who have suggested that Kennedy (perhaps with a cynical wink) made it very clear that this case was not a win for religious liberty. They suggest that Kennedy was telling LGBTQ-army lawyers to clean up their acts. In other words: Cut out the nasty, anti-faith rhetoric the next time around and you will win.
It's hard to know what passage to select from the bleak First Things essay by Hadley Arkes, emeritus professor of jurisprudence at Amherst College.
Like the David French piece referenced earlier, this is a must-read thing. But let's go with this long passage:
... (On) what did the judgment turn? During the oral argument over the case, Justice Kennedy was evidently enraged by the record of gratuitous contempt shown to Phillips by members of the Commission. Those passages supplied for him facts so egregious that they would actually determine the judgment. In their treatment of the case, the Commissioners had evinced “elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.” One commissioner had remarked that “freedom of religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust. … 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 use their religion to hurt others.”
For Kennedy, this diatribe against the religious was reprehensible in the same measure: “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.”
Yes, but so what? Kennedy did not challenge the law itself as a violation of Phillips’s religious freedom. Why should it matter that commissioners, enforcing the law, allowed their conviction of its rightness to express itself in some gratuitous sneering at a man Justice Kennedy and the Court were still willing to treat as a wrongdoer? What this situation seemed to violate, for Kennedy, was the “State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” For years it was understood that the law need not be at all “neutral” between religion and irreligion, that there were compelling reasons, for the public good, to encourage the religious life. But now the claim is reduced simply to an obligation not to be indecorously nasty while the law refuses to respect religious convictions.
In other words, here's some advice to the moral left from King Kennedy -- be nice and carry on.