Craig Mason: Supreme Court ruling a narrow decision for a big nation

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. – U.S. Supreme Court, Mastercake Bakeshop v. Colorado Civil Rights Commission, June 4, 2018.

Monday’s decision in the Mastercake Bakeshop case did not limit the ability of the government to protect gay rights in any way. Instead, the majority of the U.S. Supreme Court said that if a civil rights commission is going to weigh state interests in protecting gay rights against the right to free exercise of one’s religion, a civil rights commission must not disparage the religious right being asserted.

The owner of the Mastercake Bakeshop (Jack Phillips) got only two votes for a free speech right not to create a gay wedding cake (Thomas and Gorsuch). But, Mr. Phillips got seven votes in defense of his right not to have his beliefs disparaged by the Colorado Civil Rights Commission.

This decision is very narrow and very reasonable.

Government has an interest in keeping order and in protecting equal rights. Government has an interest in teaching the young values and ideas such that they are likely to be productive and useful citizens, and this governmental interest is in tension with parental rights to teach their children the values and ideas that the parents wish to impart to their young.

Once you are an adult, the government should only regulate your behavior, and not regulate your ideas (unless you are convicted of crimes on facts for which civil commitment is appropriate until you are cured of your dangerous ideas, values and behavioral tendencies).

Furthermore, the government must still protect adults from false advertising, unlabeled goods and services and many other forms of outright dishonesty. And the government’s regulatory powers include protecting individuals from oppressive and discriminatory acts of others.

Not one word of the majority opinion in Mastercake Bakeshop v. Colorado Civil Rights Commission diminishes the capacity of the government to require all businesses to treat gay couples, and gay people, equally (except for the clergy example, below).

The Supreme Court did say that a clergyman could not be compelled to perform a gay wedding against his beliefs; otherwise, the court was clear that essentially any other good or service would have to be offered to a gay couple on the same terms as any other couple. There would be no “free exercise” right to discriminate against gays (or for a “white nationalist” to have a free exercise right to discriminate against blacks, etc).

The two “religion clauses” of the First Amendment are: (a) that government shall not “establish” any religion, and (b) that government shall not “prohibit the free exercise” of religion.

The closer your “exercise” of religion is to simply privately-held beliefs and private devotion, the further you are from regulation by the state. To the extent your “exercise” of religion encompasses actions and deeds, especially deeds in public, the more likely you are to find that your free exercise of your religion will be balanced against “state interests.” In this instance, the state interest to be balanced is the prevention of discrimination against gay couples.

The Colorado Civil Rights Commission had previously rejected three complaints against bakeries by anti-gay customers after the three other bakers had refused to make “derogatory,” “hateful,” and “discriminatory” cakes with anti-gay artwork. Thus, there was a history of the Civil Rights Commission protecting bakers who supported gay rights.

Jack Phillips of Mastercake Bakeshop argued that if the Civil Rights Commission had defended pro-gay beliefs, it should defend his anti-gay wedding beliefs. Although the Colorado Civil Rights Commission had disagreed, the U.S. Supreme Court did not address this issue on these terms.

Instead, the Supreme Court focused on how the Colorado Civil Rights Commission attacked Mr. Phillips’ beliefs, including a member of the commission stating at his hearing that “freedom of religion” has been used to justify slavery and the Holocaust. The overall message to Mr. Phillips was that his religion was an insincere defense of bigotry. This failure of the commission to be respectful and to be neutral was what led the Supreme Court to side with Mastercake Bakeshop.

Restated, the U.S. Supreme Court said that the government has the authority to defend equal rights of gays in all matters of commerce and public life, but if the government’s laws are faced with a free exercise challenge, the government must be respectful, and above all be neutral, in addressing the beliefs of the person making the free exercise challenge.

In the 1990 Oregon case, Smith v. Unemployment Division, Justice Antonin Scalia wrote the majority opinion upholding not only the criminalization of religious peyote, but also upheld as constitutional Oregon depriving a person of unemployment compensation if he was fired for his religious use of peyote. The free exercise clause of the U.S. Constitution provided no defense.

Although the Supreme Court avoided the topic by name, the establishment clause was also implicated in the Mastercake Bakeshop decision. The Colorado Civil Rights Commission went beyond a neutral defense of equal gay rights, in that the commission also appeared to “establish” that Mr. Phillips had to “believe in” gay wedding to merit respectful treatment.

Free exercise cases like to avoid the establishment clause, and establishment clause cases often evade the free exercise clause, because the lines between the two raise very hard questions.

As I read the facts, by “disrespecting” Mr. Phillips’ opposition to gay marriage, the Colorado Civil Rights Commission was “taking sides” in a symbolic discussion about ultimate values that went beyond the secular role and purpose of protecting equal gay rights. In short, the Colorado Civil Rights Commission was “establishing” a secular catechism, and this very narrow decision properly limited that over-reach.

For those of us who accept that self-scrutiny and self-discipline can keep us from discriminating in our behavior against those with whom we disagree, this decision is perfectly sensible. For those who believe that the government should take sides in establishing uniform beliefs as a necessary basis of nondiscriminatory behavior, the decision is likely very upsetting.

I expect the next Supreme Court bakeshop decision to be a defense of the demand that gay couples receive equal treatment by all vendors. The Mastercake Bakeshop case is simply a shot across the bow of those who would have the state take symbolic sides on the religious and culture-war issues of the day.

This narrow decision is not the sky falling for gay rights. This decision is simply a reminder to make room for all of us under that sky, as long as we treat each other equally.

Craig Mason is a local attorney and Spokane native who has also taught at Columbia Basin Community College, WSU-Tri-Cities, EWU and Gonzaga.