Justice Kennedy’s Mystery of the Cake

by Tech Knight | June 17th, 2018

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Justice Kennedy's Mystery of the Cake

In Mas­ter­piece Cakeshop v. Col­orado Civil Rights Com­mis­sion, the Supreme Court (thank­fully) ruled in favor of Jack Phillips, the baker who declined to be forced to bake and dec­o­rate a cus­tom cake to cel­e­brate a same-​sex wed­ding. The rul­ing was based almost com­pletely on the doc­u­mented reli­gious hos­til­ity of the mem­bers of the Civil Rights Com­mis­sion, and thus there is con­cern that in the future the Court would allow gov­ern­ment to force bak­ers and other ser­vice providers to sup­port same-​sex wed­dings over their reli­gious objec­tions as long as the bureau­crats pre­tended to be neu­tral to the baker’s reli­gious views.

There are a few fig leaves in the deci­sion that an opti­mist could take as good news, such as Jus­tice Kennedy say­ing “the reli­gious and philo­soph­i­cal objec­tions to gay mar­riage are pro­tected views and in some instances pro­tected forms of expres­sion,” and that “gov­ern­ment has no role in decid­ing or even sug­gest­ing whether the reli­gious ground for Phillips’ con­science based objec­tion is legit­i­mate or ille­git­i­mate.” And at least he con­ceded that “a mem­ber of the clergy who objects to gay mar­riage on moral and reli­gious grounds could not be com­pelled to per­form the cer­e­mony with­out denial of his or her right to the free exer­cise of religion.”

The path to the case, if not nec­es­sar­ily the deci­sion, in Mas­ter­piece Cakeshop, is an easy one to fol­low. It started back in 2003 with Lawrence v. Texas, which found a con­sti­tu­tional right to Lib­erty as exem­pli­fied by homo­sex­ual sodomy in that par­tic­u­lar case (although Jus­tice Kennedy, in his major­ity opin­ion explic­itly refused to declare that homo­sex­ual sodomy itself is a con­sti­tu­tional right). Jus­tice Scalia cor­rectly pre­dicted the path in his dis­sent­ing opin­ion, not­ing that the deci­sion “leaves on pretty shaky grounds state laws lim­it­ing mar­riage to opposite-​sex couples.”

The next step in the chain was United States v. Wind­sor in 2012, which ruled the Defense of Mar­riage Act (DOMA) uncon­sti­tu­tional. Jus­tice Scalia and Chief Jus­tice Roberts both pointed out that this Jus­tice Kennedy’s major­ity opin­ion would inevitably lead to the Court declar­ing same-​sex “mar­riage” to be a con­sti­tu­tional right, which of course it did in Oberge­fell v. Hodges in 2015 (also authored by Kennedy). This is where Jus­tice Thomas pre­sciently pre­dicted that the deci­sion “threat­ens the reli­gious lib­erty our Nation has long sought to pro­tect.” And here we are.

A lot of the analy­sis of Mas­ter­piece Cakeshop cen­tered around whether bak­ing a cus­tom wed­ding cake counted as “speech” for the pur­poses of the Free Speech clause of the first amend­ment. And was Phillips really dis­crim­i­nat­ing against the gay cou­ple when he offered to sell them any­thing else in the store, or to cre­ate a cake for any other occa­sion? The answer is obvi­ously “no” and therein, I think, lies the solu­tion to this conundrum.

As I have said before, no one has a right to force some­one else to pro­vide a good or ser­vice. If Phillips had refused to sell a pre-​baked cake to the gay cou­ple, that would have been dis­crim­i­na­tory since he had already invested his time and tal­ent to cre­ate the cake and it was already avail­able for pur­chase by the gen­eral pub­lic. This would be the same as if a gay cou­ple tried to by a photo print from a stu­dio where the pho­tog­ra­pher was dis­play­ing his images for sale. But in either case, the gay cou­ple does not have the right to force the baker or pho­tog­ra­pher to par­tic­i­pate in a gay wed­ding if the vendor’s reli­gious beliefs pre­vent him from doing so. So the gov­ern­ment could not force the pho­tog­ra­pher to attend the cer­e­mony, doc­u­ment the event and then pro­duce the images, all of which require him to devote his time and tal­ent to an event that vio­lates his reli­gious views.

This rule would also apply to the Arlene’s Flow­ers v. State of Wash­ing­ton case cur­rently being peti­tioned to the Supreme Court.

If Mrs. Stutz­man had refused to sell a flo­ral arrange­ment avail­able to the gen­eral pub­lic to a gay cus­tomer, she would be guilty of dis­crim­i­na­tion. But she had sold flow­ers to the gay cou­ple – whom she con­sid­ered friends – for years with­out a prob­lem. It was only when she refused to be forced to design the flow­ers for their wed­ding, which involves not only cre­ativ­ity on her part, but also the nuts and bolts of get­ting the flow­ers to the cer­e­mony and arrang­ing them there, that she sup­pos­edly dis­crim­i­nated against them. Clearly, this is an infringe­ment on her first amend­ment rights to free expres­sion and free­dom of religion.

Jus­tice Kennedy’s rea­son­ing in all of these cases seems to be rooted in the infa­mous “Sweet Mys­tery of Life” pas­sage from Planned Par­ent­hood v. Casey, in which he wrote “At the heart of lib­erty is the right to define one’s own con­cept of exis­tence, of mean­ing, of the uni­verse, and of the mys­tery of human life.” As Jus­tice Scalia cor­rectly pointed out, this is “the pas­sage that ate the rule of law,” but is nonethe­less cen­tral to Jus­tice Kennedy’s jurispru­dence. A person’s reli­gious views, by def­i­n­i­tion, define his or her “own con­cept of exis­tence, of mean­ing, of the uni­verse, and of the mys­tery of human life.”

Why is a reli­gious person’s lib­erty, which is expressly guar­an­teed by the Con­sti­tu­tion, worth less than a gay person’s?

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In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court (thankfully) ruled in favor of Jack Phillips, the baker who declined to be forced to bake and decorate a custom cake to celebrate a same-sex wedding. The ruling was based almost completely on the documented religious hostility of the members of the Civil Rights Commission, and thus there is concern that in the future the Court would allow government to force bakers and other service providers to support same-sex weddings over their religious objections as long as the bureaucrats pretended to be neutral to the baker’s religious views.

There are a few fig leaves in the decision that an optimist could take as good news, such as Justice Kennedy saying “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression,” and that “government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience based objection is legitimate or illegitimate.” And at least he conceded that “a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion.”

The path to the case, if not necessarily the decision, in Masterpiece Cakeshop, is an easy one to follow.  It started back in 2003 with Lawrence v. Texas, which found a constitutional right to Liberty as exemplified by homosexual sodomy in that particular case (although Justice Kennedy, in his majority opinion explicitly refused to declare that homosexual sodomy itself is a constitutional right). Justice Scalia correctly predicted the path in his dissenting opinion, noting that the decision “leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.”

The next step in the chain was United States v. Windsor in 2012, which ruled the Defense of Marriage Act (DOMA) unconstitutional. Justice Scalia and Chief Justice Roberts both pointed out that this Justice Kennedy’s majority opinion would inevitably lead to the Court declaring same-sex “marriage” to be a constitutional right, which of course it did in Obergefell v. Hodges in 2015 (also authored by Kennedy). This is where Justice Thomas presciently predicted that the decision “threatens the religious liberty our Nation has long sought to protect.” And here we are.

A lot of the analysis of Masterpiece Cakeshop centered around whether baking a custom wedding cake counted as “speech” for the purposes of the Free Speech clause of the first amendment. And was Phillips really discriminating against the gay couple when he offered to sell them anything else in the store, or to create a cake for any other occasion? The answer is obviously “no” and therein, I think, lies the solution to this conundrum.

As I have said before, no one has a right to force someone else to provide a good or service. If Phillips had refused to sell a pre-baked cake to the gay couple, that would have been discriminatory since he had already invested his time and talent to create the cake and it was already available for purchase by the general public. This would be the same as if a gay couple tried to by a photo print from a studio where the photographer was displaying his images for sale. But in either case, the gay couple does not have the right to force the baker or photographer to participate in a gay wedding if the vendor’s religious beliefs prevent him from doing so. So the government could not force the photographer to attend the ceremony, document the event and then produce the images, all of which require him to devote his time and talent to an event that violates his religious views.

This rule would also apply to the Arlene’s Flowers v. State of Washington case currently being petitioned to the Supreme Court.

If Mrs. Stutzman had refused to sell a floral arrangement available to the general public to a gay customer, she would be guilty of discrimination. But she had sold flowers to the gay couple – whom she considered friends – for years without a problem. It was only when she refused to be forced to design the flowers for their wedding, which involves not only creativity on her part, but also the nuts and bolts of getting the flowers to the ceremony and arranging them there, that she supposedly discriminated against them. Clearly, this is an infringement on her first amendment rights to free expression and freedom of religion.

Justice Kennedy’s reasoning in all of these cases seems to be rooted in the infamous “Sweet Mystery of Life” passage from Planned Parenthood v. Casey, in which he wrote “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  As Justice Scalia correctly pointed out, this is “the passage that ate the rule of law,” but is nonetheless central to Justice Kennedy’s jurisprudence. A person’s religious views, by definition, define his or her “own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Why is a religious person’s liberty, which is expressly guaranteed by the Constitution, worth less than a gay person’s?

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