June 5, 2018
We have been told that yesterday’s Supreme Court decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ____ (2018) was a narrow ruling. The 7-2 majority decision held that the Commission was inappropriately hostile to baker Jack Phillip’s contention that his earnestly held religious beliefs compelled him to refuse to bake a wedding cake for Charlie Craig and David Mullin. Justice Kennedy found evidence of “hostility” to religion in the Commission’s scathingly accurate statement that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust…one of the most despicable pieces of rhetoric that people can use to -to use their religion to hurt others,” (Masterpiece, quoting Commission transcript at 11-12). The fact that the Court was more offended by a righteous expression of contempt for the use of religion as a weapon of intolerance is telling indeed.
The Court held that when confronted by religious bigots hiding behind the fig leaf of their beliefs to deny their fellow citizens the same right to purchase goods and services as anyone else, governmental bodies must adapt a posture of studied neutrality. Although this decision has been described as a “punt,” because it didn’t come out and flatly decide that religious beliefs trump anti-discrimination laws, the truth is more pernicious than that. The Masterpiece decision robs LGBT people of the assurance that governments can plainly articulate that discrimination against them is always wrong and that it will not be tolerated, regardless of the stated rationale. It invites zealots of every stripe to test the limits of the holding by indulging in their narrow-minded hatred and flagrantly defying anti-discrimination laws. It will require courts and human rights commissions to engage in scriptural exegesis to determine if bigots are motivated by “genuine” spiritual beliefs, rather than hidebound, antediluvian views of who among us is permitted the full expression of their humanity and love.
There is cold comfort in the dicta that “as a general rule [religious] 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,” (Masterpiece at 9). We have the legitimate fear that, rather than mobilizing to enlarge civil rights for LGBT people, we will spend the next several years playing whack-a-mole in courts around the country, simply to protect the most basic of civil rights. It is easy for those who never have had to make the calculus of whether they will be treated with respect and dignity to downplay the impact of this decision. It is easy for those who have never been reviled simply for who they are and who they love to think it is no big deal to mandate that those adjudicating discrimination claims must be “neutral” towards religion. Just remember, in the words of Bishop Desmond Tutu, “if you are neutral in situations of injustice, you have chosen the side of the oppressor.”
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