Mixed takeaways from conservatives on gay wedding ‘cake’ ruling
Some Texas conservatives opposed to gay marriage are hailing a new U.S. Supreme Court ruling as a ‘landmark’ victory while conservative writers elsewhere see it more as a mixed bag.
The 7–2 ruling yesterday in Masterpiece Cakeshop v. Colorado Civil Rights Commission concerns a case in Colorado, not Texas, but it could potentially affect future religious refusal cases in Texas, for example, similar cases concerning wedding services providers, or adoption cases.
In the Colorado case, cakeshop owner Jack Phillips had refused to make a custom wedding cake for a gay wedding in 2012. The court ruled in his favor, overturning a finding of the Colorado Court of Appeals and that state’s Civil Rights Commission that the baker had violated the rights of the gay couple seeking the custom wedding cake.
Texas Attorney General Ken Paxton applauded the U.S. Supreme Court ruling saying, “This is a landmark victory for our first liberties of religious freedom and freedom of speech.”
“The Supreme Court’s ruling affirms that the First Amendment contains robust protections for people who choose to operate their business consistent with their faith. Every American should have the freedom to choose what they will or won’t create without fear of being unjustly punished by the government.”
Likewise, Texas Senator Ted Cruz hailed the ruling saying, “Today, the Supreme Court took a stand for religious liberty against the unconstitutional demands of an oppressive bureaucracy.”
Cruz added, “whether a baker, a teacher, a doctor, or clergy, the government may not force any American to violate his sincerely held religious beliefs.”
Justice Anthony Kennedy, who authored the 7–2 majority opinion in the case, wrote that the Colorado Civil Rights Commission had “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating [the baker’s] objection.”
“As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious believes to defenses of slavery and the Holocaust,” Kennedy wrote.
In a concurring opinion, Justice Clarence Thomas wrote, “Consider what Phillips actually said to the individual respondents in this case. After sitting down with them for a consultation, Phillips told the couple, ‘I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.’ It is hard to see how this statement stigmatizes gays and lesbians…”
The Heritage Foundation, a conservative thinktank in Washington, DC, pointed to this factor as well. “The baker in this case, Jack Phillips, declined only to design and create a custom cake for this specific event; he would have sold anything else that was generally available to the public. In fact, he has done such general business with everyone, including gay people, for nearly a quarter-century,” wrote Thomas Jipping, a senior legal fellow at Heritage.
However, Jipping declined to celebrate the ruling, saying that it never should have been necessary: “Today in the United States, it takes rank bigotry — expressed in public by government officials — to get some action to protect religious freedom.” Jipping concluded, “The decision Monday was obviously correct and should have been unanimous, and perhaps it begins to expose how precarious our most fundamental freedoms really are.”
Rod Dreher, a Louisiana-based conservative commentator on religious and political issues, expressed reservations about the ruling. “The ruling leaves unaddressed all, or nearly all, of the basic constitutional questions having to do with the clash between gay rights and religious liberty. I suspect that’s how they got Kagan and Breyer on board, and probably Kennedy too: because the stakes were very small,” said Dreher, writing in The American Conservative.
“Before we religious liberty advocates get too excited about it, let us ask: How would this ruling have gone if the Colorado commissioners had not been so blatantly bigoted in their comments about the Masterpiece case? In other words, what if they had cloaked their prejudice in politeness, in bland bureaucratese?” said Dreher.
The Louisiana writer concurred with other commentators who have called the scope of the ruling “narrow,” pointing to language from Justice Kennedy that suggests the court will need to provide more guidance in future cases like this.
“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,” Kennedy wrote.
The Court decision today is perhaps a prophetic reminder to some Christians who might say, ‘Just bake the cake.’
Ed Stetzer, an Evangelical leader associated with Wheaton College, reacted to the Supreme Court ruling in an article in Christianity Today, saying, “the Supreme Court is still working to set an important line where Christians can and will choose to dissent from the growing acceptance of same-sex marriage in society.”
He pointed to continuing uncertainty about what is acceptable free speech and what is unacceptable discrimination. Justice Kennedy had said it is a ‘delicate question’ of when the free exercise of religion “when the free exercise of his religion must yield to an otherwise valid exercise of state power.”
The Christianity Today writer commented, “The Supreme Court decision today is perhaps a prophetic reminder to some Christians who might say, ‘Just bake the cake.’ However, I believe that we ought simultaneously say, ‘We have to maintain the rights of dissenters in our society.’”
Gay rights advocates, on the other hand, say that businesses should open their doors to all customers, including gays. Equality Texas CEO Chuck Smith said after the ruling, “Our nation decided more than 50 years ago that when a business decides to open its doors to the public, that business should be open to all. That core principle is at the heart of how we treat one another, and it’s more important than ever in light of today’s decision.”
“While the Court’s decision does not create a new license to discriminate, it also does not address the discrimination that millions of Americans and Texans still face. Texas law does not explicitly protect LGBTQ Texans from discrimination in stores and restaurants, in the workplace, or in access to housing,” he said.
Last year the Texas legislature passed a law protecting the “rights of conscience for child welfare services providers,” which allows childcare groups to deny adoptions or other services to LGBTQ parents on the basis of “sincerely held religious beliefs.” Under the new law, the refusing organization is required to refer prospective parents to an alternative organization that would provide the same service.
