(RNS) — 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.”
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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.
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.
Our religious jurisprudence has long been subject to discerning fine lines. Religious displays on public land are sometimes allowed, sometimes not. Public funds can be used to provide certain kinds of aid to religious schools, other kinds not.
Then there’s the issue of just whom anti-discrimination legislation has been passed to protect. Few would want to require a Jewish baker to decorate a cake for a Nazi wedding, but we do not designate Nazis as a class of people in need of anti-discrimination protection. African-Americans are so designated and so, increasingly, are people who identify as LGBTQ.
Anyone who thinks that religious liberty protections should trump anti-discrimination law in Phillips’ case should therefore recognize that this will also enable a baker who believes that God forbids race-mixing to refuse to bake a cake for the wedding of a mixed-race couple. Under the Constitution, the courts only get to decide whether a particular religious belief is sincerely held, not whether one is more legitimate — and thus more deserving of protection — than another.
What we know, however, is that since the Supreme Court declared laws against mixed-race marriage unconstitutional half a century ago, opposition to it in American society has become inconsequential. Since Obergefell did the same for same-sex marriage, two-thirds of Americans support it, 4 out of 5 below the age of 30.
We can hope that, within a few years, opposition to same-sex marriage will go the way of opposition to mixed-race marriage, and the amount of discriminatory behavior like Phillips’ will become vanishingly small.