Not a Masterpiece


In a rare departure from standard operating procedure, today I turn to a topic that would have arisen even if Trump had not been elected, namely, the Supreme Court’s June 4 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

Sometimes the way to understand a legal decision is to realize that it makes no sense. With that intuition in mind, everything falls into place. So let us ask some questions.

What was at issue in the Masterpiece Cakeshop case?

The case presented an irreconcilable conflict between two claimed rights, namely

  • the claimed right of gays and lesbians to be free of discrimination in the public marketplace, as guaranteed by Colorado statutory law, VERSUS
  • the claimed right of Colorado merchants to express their religious views by denying goods and services to gays, to avoid seeming to participate in or endorse same sex marriage, a concept repugnant to their religion.

I thought there was another issue, too. Didn’t the lawyers for the Christian baker make a big fucking deal about how cake design was protected by freedom of speech? What happened to that argument?

Most members of the Court did not think much of it.

OK, back to the clash between the right to be free from discrimination and the right not to be forced to “endorse” gay marriage. In its Masterpiece decision, did the Supreme Court decide which of these claimed rights prevails over the other?

No, it did not.

Well, suppose the Court had bit the bullet instead of nibbling it, what precedent would it have applied to decide the key issue?

Guided by stare decisis, the Court would have applied the holding in a 1990 Supreme Court case, Oregon v. Smith. Written by Antonin Scalia on one of his rare lucid days, the holding of the case is that, lest everyone become a law unto himself, we must all obey neutral, generally applicable laws, and religious views do not count as an excuse not to obey.

You say “neutral.” What does that mean?

It means a law that is not motivated by dislike for a particular religion. For example, even if the city fathers are unhappy that people are practicing Santería in their fair city, they may not prohibit chicken sacrifice, if non-religions people are free to kill chickens for secular purposes. There is actually a case about this.

If the Court had applied the holding of Oregon v. Smith to the case before it, what would have been the result?

The result would have been that the right to be free from discrimination, as provided in the generally applicable Colorado law—a law not motivated by animus toward evangelical Christianity—would have prevailed over the claimed right not to sell cakes for same sex weddings. That much is not controversial.

Would the conservatives on the Court have been willing to accept such a result, or would they have wanted to find a way to overrule Oregon v. Smith, or to fashion some convoluted exception to it, to let the Christian baker prevail over the gay couple, despite Colorado law?

The answer has to be yes, that’s exactly what they wanted to do. Otherwise, they would all have just applied Oregon v. Smith, and that would have been the end of it.

Equally obviously, the right wingers on the Court could not find five votes to overrule the 1990 case or to weasel their way out of applying it. They probably got two or three or maybe even four. But they couldn’t get Kennedy.

OK, so why did the Christian baker win the case?

The Court, per Justice Anthony Kennedy, said it was ruling in the baker’s favor because

  • members of the Colorado Civil Rights Commission expressed hostility toward the baker’s stated religious views, and
  • the Commission acted inconsistently, in that it allowed other bakers to refuse to bake cakes with anti-gay messaging, while forcing the poor baker here to effectively endorse gay marriage, plus which,
  • at the time in question, Colorado did not recognize gay marriage, so the baker probably thought he was acting legally.

I’m puzzled by the last point. If I sincerely believe I have the right to punch you in the face give me the legal right to punch you in the face?

No, it doesn’t.

And what about that second point: that other bakers got away with refusing to bake anti-gay cakes, therefore this guy could get away with not baking a “pro-gay” cake? Sounds like the Court is saying that two wrongs make a right.

Sounds that way to me, too.

Either the gay couple had a right to buy the damn cake, or they didn’t. If they did have such a right, there is no basis to deny them that right because of an arguably erroneous decision the Commission may have made in some other case, to which they were not a party.

The Court has elevated the Christian baker’s hurt feelings over the gay couple’s legal rights.

So, let’s talk about the first point—the Commissioners’ “hostility” toward traditional evangelical Christian views on homosexuality. I take the point that it’s not a good idea to gratuitously hurt people’s feelings. But it sounds as if the Court is giving a lot more weight to the baker’s hurt feelings than to the gay couple’s legal right to an open marketplace—not to mention their own hurt feelings.

Exactly right.

Let’s take this example. Ahmed and his daughter Alma are African immigrants belonging to a conservative Muslim sect. Ahmed demands that his daughter undergo “female circumcision’—that is to say, genital mutilation—as required by the teachings of his version of Islam. Alma flees, seeking legal protection against mutilation, citing various general laws on battery and mayhem, plus the specific provisions of Title 18, Section 116, of the United States Code, as well as the similar law enacted in the state where she lives.

Ahmed’s lawyer counters, citing (a) the strong policy in favor of parental rights, including the right to raise their children according to the tenets of their religion, and (b) his strong religious belief in female circumcision. On these grounds, he demands custody over his daughter.

The case is heard before a panel of three justices, Able, Baker, and Cane. In the course of the oral argument. Judge Able remarks on the horror of female genital mutilation. Judge Baker opines that belief in genital mutilation is based on a profound misinterpretation of the beautiful religion of Islam. Judge Cane disagrees with Baker, claiming that the prevalence of genital mutilation fits perfectly with Islam—and shows what a base and degraded religion it is.

All three judges find for Alma and against Ahmed.

Having lost in the state courts, Ahmed takes his case to the United States Supreme Court. What result? Would the Court say, “Ahmed, we’re sorry that the three judges spoke so disrespectfully of your sincere religious views, so don’t worry about the law, just go ahead and whack off her clitoris”?