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Justices threaded the needle with Masterpiece Cakeshop decision
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Justices threaded the needle with Masterpiece Cakeshop decision

06.04.18

The Masterpiece Cakeshop is a case at the intersection of the rights protected by the First Amendment and the rights and dignity of gay persons in this country.

You may recall that the owner of Masterpiece Cakeshop had refused to create a cake for a same-sex wedding, and the Colorado Civil Rights Commission then ordered him to “cease and desist” from discriminating against same-sex couples “by refusing to sell them wedding cakes.” The Commission also ordered him to conduct comprehensive staff training and to prepare quarterly compliance reports for a period of two years.

Justice Kennedy, who also authored the Supreme Court’s decision in Obergefell v. Hodges, which recognized the constitutional right to enter into a same-sex marriage, authored the Court’s opinion here.

This opinion echoes the core of Obergefell: “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason, the laws and the Constitution can, and in some instances must protect them in the exercise of their civil rights.”

Justice Kennedy also recognizes the importance of religious freedom: “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Surely, one of these principles must cede to the other here?

Not necessarily. Justice Kennedy threads a needle here. He concludes that the Commission failed to follow an appropriate process and “violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”

Thus, it was not the ultimate conclusion of the Commission – i.e., that the state’s anti-discrimination law prohibited a cake maker from declining service on the basis of sexual orientation. Instead, it was the process by which that conclusion came to be. To wit, the Commission referred to the cake maker’s faith as “despicable” and characterized the cake maker’s stance as mere “rhetoric.” One of the Commissioners went so far as to compare the cake maker’s “invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.”

Justice Kennedy concludes by acknowledging that this battle is not over but that we must strive to recognize and respect the competing interests at stake: “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Respect, tolerance, and the dignity of humankind. Justice Kennedy could be on to something.



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