Today the Supreme Court heard arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, one of the most scrutinized cases on the docket this term. The Court will decide whether Jack Phillips, a Christian baker, has a First Amendment right to refuse to make a wedding cake for a gay couple on religious or free-speech grounds, even though Colorado’s public-accommodations law prohibits discrimination on the basis of sexual orientation.
A ruling in Phillips’s favor, depending on its scope, could open LGBTQ people up to a wide range of discrimination in daily life in nearly any retail or service setting. It is also a test of a core foundational principle of the Christian-right legal powerhouse, Alliance Defending Freedom, which represents Phillips and maintains that Colorado’s law is unconstitutional as it was applied to him. As we reported last week, ADF has long argued that LGBTQ rights endanger the religious freedom of Christians. In the wake of the landmark ruling in Obergefell v Hodges (2015) in favor of marriage equality, Masterpiece Cakeshop represents the first test at the Supreme Court of ADF’s claim that religious objectors should have the right to refuse to serve same-sex couples.
Remarkably, ADF found a sympathetic ear not just from the four conservative justices on the Court—but also from Justice Kennedy, the author of four historic opinions extending gay and lesbian rights, including Obergefell itself. Along with Justices John Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch, Kennedy appeared receptive to ADF’s claim that proponents of LGBTQ equality are motivated by religious animus.
The most revealing exchange on this front occurred when Kennedy pressed Colorado Solicitor General Frederick Yarger not about the law itself, or its legislative history, but rather about a single statement made by one member of the state’s Civil Rights Commission in 2015, when the original case was being litigated. At a hearing then, Commissioner Diann Rice said, “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the [H]olocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
As Masterpiece Cakeshop has moved through the courts, ADF and other conservative groups have been aggressively promoting the quote as evidence of the Commission’s anti-religious sentiment, claiming that one commissioner compared Phillips “to Nazi [sic].”
But the statement does not evince a hostility to religion itself, only opposition to the invocation of religion to justify discrimination. Nonetheless, Kennedy and others seized on it to suggest that fears of anti-Christian bias might indeed be real. He pressed Yarger to disavow Rice’s statement, which eventually Yarger did. Still, to Kennedy, the entire case appeared to be tainted.