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Our Opinion: Masterpiece decision: The 7-2 ruling wasn't even close

Our Opinion: Masterpiece decision: The 7-2 ruling wasn't even close

June 7th, 2018 by Arkansas Democrat-Gazette in Opinion

The following editorial first ran in the Arkansas Democrat-Gazette:

As the talking heads scream at each other on the cable shows, it may do Gentle Reader some good to hear a few of the facts involving Monday's U.S. Supreme Court ruling about that baker in Colorado and the gay couple he didn't bake for. Because if you listen to just one 15-second sound bite from Side A, you might think the Supreme Court has set back civil rights two decades. And if you listen to Side B, you might think this ruling closes the matter completely. Neither seems right.

From the top:

Back in 2012, a same-sex couple, Charlie Craig and Dave Mullins, visited Masterpiece Cakeshop to order a cake for their wedding reception. The owner of the shop, Jack Phillips, said he couldn't make a cake for them, because a same-sex wedding violated his religious beliefs. (And, at the time, state law.)

The couple sued.

One would understand that much listening to the broadcast news. However, there are more details. And reasons why the U.S. Supreme Court ruled 7-2 in favor of the baker, with several of the top court's more liberal members joining conservatives.

The couple took their fight to the Colorado Civil Rights Commission. That commission didn't just rule in favor of the couple, but it pretty much treated the baker, and his religious beliefs, in a disparaging manner. According to Justice Anthony Kennedy's majority opinion:

The Commission ordered Phillips to "cease and desist from discriminating against same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples." It also ordered additional remedial measures, including "comprehensive staff training on the Public Accommodations section" of [the law] "and changes to any and all company policies to comply with this Order." The Commission additionally required Phillips to prepare "quarterly compliance reports" for a period of two years documenting "the number of patrons denied service" and why, along with "a statement describing the remedial actions taken."

Quarterly compliance reports? That sounds like something out of Dilbert. Or a big media company. Comprehensive staff training? Could we put them in camps and call it re-education?

Mr. Phillips told the couple he'd make them birthday cakes, shower cakes, brownies and cookies. They could buy anything in the store. He just wouldn't actively participate in creating a cake, a masterpiece as it were, for something that violated his religious beliefs. Any more than a preacher could be required to officiate the wedding. And the Colorado Civil Rights Commission not only took offense, but became offensive.

At one meeting, a commissioner said this, for the record: "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, 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."

To which the Supreme Court answered:

To describe a man's faith as "one of the most despicable pieces of rhetoric that people can use" is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere. The commissioner even went so far as to compare Phillips' invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.

This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado's anti-discrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation.

The court's ruling comes back to this, again and again, at least in our reading: The gay couple wasn't at fault. The baker wasn't at fault. But the commission in charge of protecting everybody's rights was at fault — for openly insulting the baker and his religion time and again. And not granting him the basic right of neutrality that it should use in deciding any legal case.

Let us now turn to Justice Elena Kagan's concurring opinion. One of the more liberal leaning members of the court, her views may have more weight for our friends on the left than certain others of her colleagues.

As a rule, a general rule, business owners shouldn't be able to deny services to people under the public accommodations law. But, Justice Kagan writes, "in upholding that principle, state actors cannot show hostility to religious views; rather, they must give those views 'neutral and respectful consideration.' I join the Court's opinion in full because I believe the Colorado Civil Rights Commission did not satisfy that obligation."

This nation's top court likes to punt. It does so often. Not always, but often enough. These aren't the days of miracles, as a president named Lincoln once noted, and in modern times the court has tended to decide cases narrowly when that escape presents itself. It has done so again.

Whether a baker can tell a same-sex couple no is still anybody's guess. Especially since homosexual marriage is now on the books. But one thing is clear from this ruling:

The state, through its representatives on civil rights commissions, can't go around comparing Christian businessmen to Nazis and slave owners. If the state can't grant certain favors for believers, it certainly shouldn't insult and defame them, or assume their faith is only talk.

At least this nation's Supreme Court sees that much. And for that much We the People can give thanks.