The United States Supreme Court disappointed many LGBTQ activists and advocates on Monday when it issued its long-awaited ruling on the “cake shop” religious freedom case. In a 7-2 decision, the court sided with a bakery that refused to make a wedding cake for a same-sex couple for religious reasons in 2012.
However, as is her style, Justice Ruth Bader Ginsburg emerged as a voice for those marginalized by the ruling, which has been criticized for its narrowness. In an eight-page dissent, Ginsburg emphasized the need to draw the line between religious and political freedoms and discrimination.
Her dissent pushed back against the majority opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, written by Justice Anthony Kennedy, which referenced two similar discrimination cases for which the Colorado Civil Rights Commission’s made different rulings. In his written opinion, Kennedy pointed to what he saw as inconsistent rulings as an illustration of the Commission’s “hostility” toward the Masterpiece baker’s religious beliefs.
In her dissent, Justice Ginsburg, expressing both her own opinion and that of Justice Sonia Sotomayor, lambasted the majority opinion as positing a false equivalency. While she agreed with much of what Kennedy wrote in his decision, “the cases the Court align[ed] are hardly comparable,” she wrote.
In the first case — Masterpiece Cakeshop v. Colorado Civil Rights Commission, on which the Supreme Court ruled this week — the owner of a Colorado cake shop, Jack Phillips, refused to make a wedding cake for a same-sex couple on the grounds that doing so would violate his religiously held convictions against same-sex marriage. The same-sex couple then brought a discrimination claim against Phillips before the Colorado Civil Rights Commission, and the Commission ruled in the couple’s favor.
In the second case, a man named William Jack went to three separate Colorado bakeries asking for a cake in the shape of an open Bible. On one of the exposed pages, he wanted an image of two groomsmen holding hands with a red ‘X’ over them. On the other, Jack wanted the words: “Homosexuality is a detestable sin. Leviticus 18:2.” When all three bakeries denied his requests because they deemed them offensive, Jack too went to the Colorado Civil Rights Commission. But in that case, the Commission ruled in favor of the bakeries.
Justice Kennedy used the divergent rulings in these two cases to argue that the Colorado Civil Rights Commission had shown “hostility” toward religious beliefs against same-sex marriage and lacked neutrality. In coming to that conclusion, Kennedy and six other justices ruled that the Commission should have ruled consistently and decided in favor of Phillips’s right to deny the same-sex couple a cake.
But RBG argued that there is one major difference between the two incidents.
In the first incident, a business denied someone a service it would have happily provided to another customer. Phillips denied the same-sex couple, “for no reason other than their sexual orientation, a cake of the kind he regularly sold to others,” Ginsburg wrote.
In the second incident, businesses denied someone a service because they disagreed with the service itself. “The bakers would have refused to make a cake with Jack’s requested message for any customer, regardless of his or her religion,” Ginsburg wrote. “And the bakers visited by Jack would have sold him any baked good they would have sold anyone else.”
The latter incident shows the exercising of moral judgment, Ginsburg argued, while the former shows discrimination.
“Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it,” she wrote. “The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the requested product would literally display.”
Turning the tables, under RBG’s logic, a cake shop owner would presumably be within their rights to refuse to make a cake that says “gay marriage is great” because of their religious beliefs, as long as that owner would deny that service to anyone who came to the shop. And a cake shop owner would be guilty of discrimination if they denied a standard wedding cake to, say, a fundamentalist Christian couple.
Though RBG’s fellow justices were unconvinced by her inspiring logical clarity, legal observers in the LGBTQ advocacy community say the the “cake shop” decision was still an overall win for anti-discrimination. The Supreme Court’s ruling was a “narrow” one, meaning the decision only applies to this particular case and technically sets no widespread precedent regarding anti-LGBTQ discrimination.
On Monday, James Esseks, director of the ACLU’s Lesbian, Gay, Bisexual, Transgender, and HIV Project, published a blog post titled, “In Masterpiece, the Bakery Wins the Battle but Loses the War." Esseks wrote that “the opinion is full of reaffirmations of our country’s longstanding rule that states can bar businesses that are open to the public from turning customers away because of who they are."
According to Esseks, the court has “clearly signaled” that “a constitutional right to discriminate and turn customers away because of who they are ... is not in keeping with American constitutional tradition.”
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