In Masterpiece Cake, Anthony Kennedy Uses Liberal Contempt For Bigotry To Authorize Bigotry

What’s worse, being a bigot or being called a bigot? I think the answer is obvious: the many overt and subtle acts of bigotry, racism, and sexism perpetrated in this society constitute a harm far greater than a sometimes casual, occasionally incorrect, application of the term “bigot.”

Of course, I’m not white. The consequences of bigotry are a bigger problem in my life than the consequences of name-calling. For straight white men, privileged as they are to be nearly untouchable by the stress and humiliation of bigotry, merely being called a bigot can, like, ruin their day. They can fear the name-calling, because nobody is throwing sticks and stones at them when they try to purchase a cake.

Today, the Supreme Court affirmed the cry of white fragility. It ruled, 7-2, that the state’s contempt for religious zealotry was such an affront to the free exercise of religion that it was the bigger problem than a bigot’s contempt for same-sex couples. Hold your tiki torches high, Anthony Kennedy thinks it’s unconstitutional for the state to hurt your feelings.

In case you have been living under a rock, Masterpiece Cake is the case where the baker refused to make a wedding cake for a same-sex marriage. In the wake of gay marriage decisions and the right’s counter-reaction to continue the humiliation of gays through the denial of services, we thought this case might be an epic throwdown between gay rights and religious freedom. Failing that, we thought this case might present a detailed examination of what constitutes “speech” and whether the First Amendment extends to the mere production of goods and services.

Anthony Kennedy’s majority opinion is none of that. It punts on all of these crucial issues. If you tuned into Masterpiece Cake expecting our final battle, you left disappointed as neither army took the field. This was not “The Snap,” this was “I can’t believe I have to sit through Ant Man and the Wasp before we get back to the main story.”

Instead of deciding the big issues, Kennedy seized upon the actions of the Colorado Civil Rights Commission. The Commission, pursuant to the Colorado Anti-Discrimination Act, ruled that baker Jack Phillips illegally discriminated against Charlie Craig and Dave Mullins, based on their sexual orientation. Kennedy didn’t decide if the Commission was right about that, under the CADA or the First Amendment. Instead, he found that the Commission was really very mean to Jack Phillips, denying him the protection of a “neutral arbiter” that the First Amendment requires. It was the Commission’s so-called “hostility” to Phillips’s religion that denied him the free exercise thereof, according to the Court.

Craig Konnoth predicted exactly this result in the Washington Post after oral arguments. But reading it happen was still a study in the refusal to make a point. Kennedy tries so hard to narrow this opinion that he actually closes it 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, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

Justice Elena Kagan, who along with Stephen Breyer joined Kennedy’s opinion to give the case its unusual 7-2 margin, wrote separately to emphasize that this decision does not mean religious people can discriminate against gays in other contexts:

Colorado law, the Court says, “can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante, at 10. For that reason, Colorado can treat a baker who discriminates based on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground. But only, as the Court rightly says, if the State’s decisions are not infected by religious hostility or bias. I accordingly concur.

If you are a fan of gay rights, Kennedy and Kagan give you enough of a silver lining so you can feel like this decision isn’t the end of the world.

But I want to examine Kennedy’s and Kagan’s assertion that the Commission was “hostile” toward Phillips’s religion… because their view is crap. Kennedy writes:

On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated:

“I would also like to reiterate what we said in the hearing or the last meeting. 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.” Tr. 11–12.

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. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. 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.

The commissioner doesn’t describe Phillips’s Christianity as “despicable,” he or she describes the way Phillips is using Christianity to justify bald bigotry as despicable. WHICH IT IS.

It is a FACT that religion has been used to justify slavery, and the Holocaust, and pretty much every act of mass genocide in the history of man. It’s also a fact that religion has been used to justify opposition to that kind of evil. “Religion” is not good or bad but people make it so. Using Jesus to justify the literal refusal to make bread for your neighbor is… disgusting. It is HOSTILE to the conception of religion that millions and millions of people adhere to. The greater sin, to my mind, is using the Lord’s name to justify evil, not a commissioner rightly pointing out that these kind of crap arguments have been made before.

Of course, if we live in a world where an official’s on-the-record distaste for a person’s religion can be used as evidence that a state’s policy violates the Free Exercise clause, that might be a good thing. I can think of one official in particular that has spent the last three years showing open hostility towards certain religions, and I would like for him to be held accountable for his statements in future cases before the Court.

However, Kennedy indicates that the the hostility towards religion he divines in this case will be easily distinguishable from hostility towards religion in other cases. SCOTUSblog caught this paragraph that seems to set the foundation upon which future hypocrisy will rest:

Regarding the issue of Trump’s comments in the travel ban case, Justice Kennedy seems to go out of his way to say the commissioners’ comments are different because they were made by members an adjudicatory body during proceedings for a specific case: “Members of the court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. In this case, however, the remarks were made in a very different context-by an adjudicatory body deciding a particular case.”

Unbelievable. So a random Colorado commissioner accurately talks about how religion has been used to justify bigotry, and Kennedy says that it frustrates an otherwise simple application of anti-discrimination law. But the President of the United States can make statements showing open hostility towards Muslims, and it’s fine because it’s just Twitter. These conservatives have no shame.

For what it’s worth, I always thought the same-sex couple had a tough case here, but not because of the Free Exercise clause. Call me “hostile” but I do not think your religious beliefs justify bigotry against those looking to buy publicly available goods and services.

I thought that if the couple was going to go down, it was going to go down on Free Speech grounds. I do not personally think baking a cake is a speech act anymore than I think the people at Subway are sandwich “artists.” But reasonable people disagree, and in this case (sigh) Clarence Thomas was the only justice who offered a reasonable defense of Phillips’s rights on First Amendment grounds.

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.’” App. 168. It is hard to see how this statement stigmatizes gays and lesbians more than blocking them from marching in a city parade, dismissing them from the Boy Scouts, or subjecting them to signs that say “God Hates Fags”—all of which this Court has deemed protected by the First Amendment. See Hurley, supra, at 574–575; Dale, 530 U. S., at 644; Snyder v. Phelps, 562 U. S. 443, 448 (2011). Moreover, it is also hard to see how Phillips’ statement is worse than the racist, demeaning, and even threatening speech toward blacks that this Court has tolerated in previous decisions. Concerns about “dignity” and “stigma” did not carry the day when this Court affirmed the right of white supremacists to burn a 25-foot cross, Virginia v. Black, 538 U. S. 343 (2003); conduct a rally on Martin Luther King Jr.’s birthday, Forsyth County v. Nationalist Movement, 505 U. S. 123 (1992); or circulate a film featuring hooded Klan members who were brandishing weapons and threatening to “‘Bury the niggers,’” Brandenburg v. Ohio, 395 U. S. 444, 446, n. 1 (1969) (per curiam).

Yeah. Yeah. Justice Thomas is… right here. Given what we already allow bigots to do to gays and minorities under the guise of “free speech,” it’s hard to place Phillips’s actions beyond the pale.

I would have ruled against Phillips, but, again, I’m hostile towards acts of bigotry. I neither have the time nor the luxury of concerning myself with the language policing of what we call those acts. If the hood fits, wear it.

Masterpiece Cakeshop v. Colorado Civil Rights Commission [Supreme Court]

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.