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?

Don’t forget to hit DaTipJar!
Or better yet, subscribe!