By the end of June, the U.S. Supreme Court will decide Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, an important case addressing the intersection of our nation’s foundational right to religious liberty and the Court’s newly recognized right to same-sex marriage.
Many expect Justice Kennedy to be the deciding vote in a 5-4 decision. The December 5, 2017 oral arguments provide the only insight into what he may be thinking about Colorado’s attempt to force Jack Phillips, the owner of Masterpiece Cakeshop, to create a custom wedding cake for a samesex marriage ceremony despite his religious objections. In an encouraging sign for the First Amendment, Justice Kennedy appeared to recognize that there is a difference between someone’s actions and their identity. A lynchpin of the argument made by LGBT activists has been that refusal to participate in a same-sex wedding is discrimination based on the sexual orientation or “identity” of the individuals involved. Kennedy called this argument “facile” or superficial, appearing neat and comprehensive only by ignoring the true complexities of the issue.
While LGBT activists have claimed that bakers such as Jack Phillips are bigots, Kennedy wondered if it was Colorado’s Civil Rights Commission which had shown bigotry. The state’s Solicitor General was allowed to continue his oral arguments only after he disavowed a commissioner’s comments comparing the baker to a racist and Nazi. Kennedy went on to say that “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
Justice Alito also pointed to Colorado’s lack of “mutual tolerance” by protecting the freedom of cake artists when three religious customers requested cakes that criticized same-sex marriage, but imposing a three-part penalty on Jack Phillips when he refused to make a cake supporting same-sex marriage.
The Family Foundation and over 30 other family policy councils stated in their public policy amicus brief filed in this case, “Let the patron find a willing creator, and let the unwilling artist keep his conscience clean.”