Why The Masterpiece Cakeshop Ruling Is Not Good For Conservatives

Although a victory for the Christian baker, the ruling was a defeat for the rule of law.

While Jack Phillips, the owner of Masterpiece Cakeshop can rest a little easier after this week’s ruling, the Supreme Court decision may not bode well for the larger issues of religious freedom and freedom of speech. The narrow ruling avoided the question of how religious freedom and personal sexual freedom can be resolved and instead hinged on the anti-religious attitude of several members of the Colorado Civil Rights Commission.

The Court did not rule on the central question in the case, the question of whether the government has the right to compel private citizens to act against their sincerely held religious convictions. In the ruling, Justice Anthony Kennedy seemed to stress that, since same-sex marriage was not the law of the land in 2012 when actions in the case occurred, there was leeway for Phillips that a future defendant might not have.

In the decision, Kennedy acknowledged, “State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive.” Kennedy also noted that the Colorado Civil Rights Commission had concluded “on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages.”

Kennedy said that Phillips’ claim “that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs.” However, the justice goes on to say that Phillips’ “dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages performed in the State and before this Court issued United States v. Windsor, 570 U. S. 744, or Obergefell.”

Per Justice Kennedy, Phillips “was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case.” He continues, “That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.”

The decision of the Court was not that the Colorado law produced an undue burden on Phillips or that the state had no compelling interest in forcing bakers to violate their religious principles. Instead, Kennedy wrote, “the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same.”

The opinion of the Court, as written by Justice Kennedy, hinged on the fact that the members of the Colorado commission expressed hostility rather than neutrality. The Court’s decision was not a decision based on objective law or the merits of legal arguments. It was a decision based on the emotions exhibited by the commissioners.

Further, Kennedy’s decision hinted that even this legal loophole might not be open to future plaintiffs. Part of Phillips victory hinted at the fact that same-sex marriage was not legal in Colorado at the time. Kennedy seems to believe that Phillips’ “deep and sincere religious beliefs” would not be so “understandable” in a nation where same-sex marriage has been established as the law of the land.

While the Masterpiece Cakeshop ruling is a clear victory for Jack Phillips, it is hard to see the ruling as a victory for religious freedom or freedom of speech. It is likewise a defeat for the objective rule of law at the hands of what Antonin Scalia once called “the mystical aphorisms of the fortune cookie.” The message to the Colorado Civil Rights Commission is that government officials should act tolerant in public in order to appear objective before making their rulings eviscerating the First Amendment rights of Christians.

[Photo credit: Stefano Bolognini /Wikimedia]

Fascism has a specific meaning and context which you are willfully ignoring. The full definition is: a political philosophy, movement, or regime (such as that of the Fascisti) that exalts nation and often race above the individual and that stands for a centralized autocratic government headed by a dictatorial leader, severe economic and social regimentation, and forcible suppression of opposition. None of that actually applies to a baker being forced to bake a cake. NONE. You look hysterical because you're freaked out about baking a cake. You look like a moron because you completely misuse fascism. Calling Trump a Nazi is exactly the same kind of misuse and hysteria. There has never been a liberal fascist regime, fascism has never existed in this world as anything but an ultra conservative tactic and construction.

You also said "I don't imagine Fascist(sp: a Fascist if singular, Fascists if plural) would tolerate " not "No Fascist would actually tolerate..." Those are two very different sentences. One leaves the possibility of tolerance (where there certainly is none) and the other more correctly states the absolute lack of tolerance. Lots of things we can't imagine, do actually happen. Like Trump being president.


Whether or not gay marriage is legal should not
enter into this. It should not have anything to do with the first amendment. It has nothing to do with the customers being gay. It is about forcing a business to produce a product that is against his religious belief. Would a gay printing shop be forced to make a shirt saying that homosexuality is a sin. I am sure they would win their case.


A business has no religious belief. A business must follow fair use laws.


@ConservativeChick -- Fascism is the unchecked end result of conservatism. On the progressive side, left unchecked, tends to result in socialism or communism.


@Chevy99 I respectfully disagree. It shouldn't be religious issue at all. I could run website design company. Client wants to promote cigarettes to an adult public. Totally legal. I turn him down because I disagree with people smoking. It's my call. I lost money, job, potential clients etc. But it's my call. It's insanity that I'm also sued because of it!