Masterpiece Cakeshop has been decided, but the battle over what it means has just begun. And it may be decided by publicists rather than lawyers.
The reality is, the law is no different today than it was last week. Despite the hopes on both right and left, Cakeshop decided nothing. Three justices voted for the baker who refused to bake a wedding cake for a same-sex couple, four voted against the baker, and two—Kennedy and Roberts—voted for the ultimate holding: that the Colorado civil rights commission didn’t take the baker’s religious objection seriously enough.
That middle position enabled Justice Kennedy to preserve both his free speech and LGBT equality legacies, but it didn’t make any new law. We already knew, before Cakeshop, that the government must be neutral regarding religious claims and that it is unconstitutional to show animus to a religious belief. That’s why the vote was 7-2.
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And while there is excellent rhetoric in the case that LGBT activists will be quoting for years to come, ultimately that language is what lawyers call “dicta.” Since it isn’t really responsible for the ruling, it doesn’t count as precedent.
Finally, Cakeshop did hold that religious practice doesn’t end at the church-house door, something conservatives have been arguing for years. Then again, no one has really been arguing against them; everyone knows that the First Amendment isn’t limited to places of worship. Once again, Cakeshop broke no new ground.
But that’s the legal reality. The public perception is something else.
Already, both sides have been furiously spinning Cakeshop, although the right has been more consistent than the left. “Victory for Cake Artist Jack Phillips at the Supreme Court!” screamed the website of Alliance Defending Freedom, the leading organization seeking religious exemptions from civil rights laws.
That is technically true, but ADF knows as well as I do that they didn’t get what they wanted, which was a clear ruling that a bona fide religious belief takes precedence over a non-discrimination law. Only Justices Thomas, Alito, and Gorsuch took that position, in a concurring opinion.
On the left, though, reactions ranged from sky-is-falling despair to ambivalent nuance. “Today We Saw A Blow to Our Constitutional Rights” cried the LGBT Bar Association. Whereas the ACLU announced “Supreme Court Upholds Basic Principles of Nondiscrimination, Reverses Colorado Civil Rights Commission Decision.”
While it’s hardly novel to inspire donations by stirring up fear, in this case, the fear-mongers are playing into the Right’s hands. Surely the greatest risk of Cakeshop is precisely that it will be misinterpreted as a great victory for religious exemptions, and inspire thousands of Jack Phillips to refuse services to LGBT people. Most of those refusals will never make it to trial, meaning the actual law is less relevant than the perception.
In this case, Chicken Little is helping the sky fall.
Moreover, the real threats to women’s and LGBT rights come not from judicial actions like Cakeshop but from the massive changes already underway in the federal government.
Last October, Attorney General Jeff Sessions circulated a memorandum to the Department of Justice basically telling attorneys general not to prosecute any discrimination claims if there are religious objections on the other side. That memo went beyond the wildest dreams of Cakeshop could have accomplished.
And since prosecutorial discretion plays a far larger role in actual outcomes than jurisprudence does, Sessions’ memo is worth a thousand Masterpiece Cakeshops.
Similarly, the Department of Health and Human Services has now established a de facto office of discrimination to investigate claims of “religious discrimination” against doctors, pharmacists, and hospitals who deny services to women and LGBT people. That office is headed by Roger Severino, formerly of the Heritage Foundation and the Becket Fund (Hobby Lobby’s lawyers), who has for decades been an activist against same-sex marriage, non-discrimination laws, and access to birth control.
In Severino’s world, it’s the doctor who won’t treat my baby daughter who is the victim of discrimination, not me or my daughter. Or the pharmacist who refuses to dispense a prescription for birth control pills, not the woman seeking medication. Or he hospital which refuses to recognize a transgender person’s gender, not the trans person seeking healthcare.
And his views are now government policy. If I try to lodge a complaint against the doctor who told me to get lost, I’m discriminating against her. If the New York City civil rights commission investigates it, they’re discriminating too. And so Roger Severino will come after us.
These administrative actions—and there are many more, especially at Betsy DeVos’s Department of Education—are mostly unreviewable. None of them depend on the result in Masterpiece Cakeshop. And among the many depredations of the Trump administration, they can seem like small, which means they are proceeding apace, away from media scrutiny.
And they’re just the beginning. Eventually, the goal of the religious exemptions movement is to make certain rights—LGBT equality, women’s health choices—basically non-existent. Conservatives won’t strike them from the books; they’ll just stop enforcing them, or carve out exemptions so large that the legal rights become functionally useless, at least in red states and ‘red’ companies like Hobby Lobby, U-Line, or Chick-Fil-A.
Ironically, after Cakeshop, litigation may be the movement’s least productive avenue. Other cases involving wedding-related refusals—photographers, florists, wedding halls—are wending their way through the court system. Depending on the jurisdiction, some have gone in favor of the refuser, others against.
But Cakeshop neither helps nor hurts them. Yes, if there are smoking guns in those cases, like the records of the Colorado civil rights commission, then the religious refusers will win. But otherwise, we’re back at square one. These other cases will have to wait for the next Supreme Court case to find out what happens next.
