Mark Silk on the End of the Masterpiece Cakeshop Case

Baker Jack Phillips, owner of Masterpiece Cakeshop, manages his shop after the U.S. Supreme Court ruled that he could refuse to make a wedding cake for a same-sex couple because of his religious beliefs did not violate Colorado’s anti-discrimination law Monday, June 4, 2018, in Lakewood, Colo. (AP Photo/David Zalubowski)

Last week, to little notice, the Masterpiece Cakeshop case ended with a whimper. Nine months after the Supreme Court found that the Colorado Civil Rights Commission had acted prejudicially in upholding the complaint of a gay couple who were refused a wedding cake by baker Jack Phillips, the two sides agreed to stop fighting.

Specifically, the Commission withdrew its proceedings against Phillips for discrimination and Phillips withdrew his case against the Commission for harassment. Which is to say that Phillips can keep refusing to customize cakes that, as he put it, “celebrate events or express messages that conflict with my religious beliefs.”

As you’ll recall, the justices didn’t decide that Phillips has the right to say no. Writing for a 7-2 majority, Justice Anthony Kennedy declared that while “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression,” nevertheless, “such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

In other words, Kennedy, who delivered the country’s landmark decisions on gay rights (e.g. Lawrence v. Texas, Obergefell v. Hodges), left the door open to a decision that would have told Phillips to provide cakes to those celebrating same-sex nuptials if he wanted to stay in business. But now, with Kennedy replaced on the bench by Brett Kavanaugh, a finding that Phillips unlawfully discriminated seems considerably more remote. It’s no surprise that the Commission decided that the better course of valor was to fold its tent.

There can be little doubt, however, that the Court will have to deliver itself of a decision on the merits of such a case. Soon enough, the justices will be considering the situation not only of bakers but also of photographers, florists, musicians, and those in who knows what other lines of work with religious objections to whatever activity someone would hire them for.

A reasonable argument can be made that it’s appropriate to recognize a right of refusal on the part of those who provide services that involve clear speech acts or levels of artistic expression. Custom bakers yes, the guys setting up the chairs and pouring the drinks not so much. Photographers and florists maybe, maybe not.

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Source: Religion News Service