SCOTUS, Rights and Discrimination
by Peter Tim (July 1, 2018)
Legal decisions often make interesting reading. This is especially so when they concern ordinary people engaged in the ordinary course of life, liberty and the pursuit of happiness. Supreme Court of the United States (SCOTUS) opinions often involve the most puzzling and difficult questions because when SCOTUS considers a case it is either because a lower court has not quite gotten it right or lower courts have disagreed about an important matter. Add to this that matters of the law have always figured prominently in matters of religion and vice-versa. It is no accident that the word “law” appears hundreds of times in the Bible or that such traditions as Sharia (Islam) — as well as Halakha (Jewish), Canon Law (Catholic), and Dharmasastra (Hinduism/Buddhism/Jainism/Sikhism) — feature centrally in the world’s religions. This is despite and arguably because of the vital importance of state-church separation when the state wields superior authority and the force.
On June 4th, SCOTUS decided 7–2 in Masterpiece Cakeshop v Colorado Civil Rights Commission (CCRC) in favor of a baker who was ruled against in a 2012 complaint that he had refused to make a custom wedding cake for a gay couple. The baker’s position was, as he explained in media reports:
I’m a cake artist … I communicate messages through what I create … investing some part of my creative soul … [a wedding cake for gays is] an idea my heart rejects.
The CCRC rejected the idea that religious beliefs justify invidious discrimination. One Commissioner said that:
if a businessman wants to do business in the state and he’s got an issue with the law’s impacting his personal belief system, he needs to look at being able to compromise.
Another Commissioner said:
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 … hundreds of situations where freedom of religion has been used to justify discrimination. … it is one of the most despicable pieces of rhetoric that people can use to use their religion to hurt others.
The SCOTUS majority led by Chief Justice John Roberts took notice of these factual statements, saying that they “disparaged [the baker’s] faith as despicable and characterized it as merely rhetorical” and “[as] a clear and impermissible hostility toward the sincere religious beliefs” of the baker. It also noted that the 2015 decision in Obergefell legalizing same-sex marriage in all states had not yet been handed down so that the baker “was not unreasonable in deeming his decision lawful.” It put further weight on the CCRC’s rulings allowing other bakers to decline to make cakes with anti-gay messages.
The dissenting minority opinion by Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, observed that the CCRC’s ruling had already been reviewed by lower courts that showed no hostility to the baker. And in any case, Ginsburg wrote, “the comments of one or two Commissioners [is] … no reason … to overcome Phillips’ refusal to sell a wedding cake to” the gay couple.
Strangely, Justices Kagan and Breyer, normally “liberal,” joined the majority in the decision. But the narrowness of it, based on conditions specific to the case that are no longer applicable, leaves room for hope, especially with the majority saying:
any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.
Apart from legal considerations, the case involves a variety of more philosophical questions. The most obvious is just how much regulation of the marketplace is desirable and appropriate in a free society in which rights must always come with responsibilities. Those offering goods and services to the public, for example, must adhere to practices and disclosures required by law. In this respect, we see a closer 5–4 decision in the NIFLA case handed down this past June 26 in which SCOTUS struck down a California law requiring “pregnancy crisis centers” to post notices informing patients of free state-provided pregnancy-related services including abortion. In this case, Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor and Kagan, making a reasoned and devastating argument against the ill-considered majority opinion.
Americans have now, for decades, accepted the idea of nondiscrimination and lived under laws prohibiting invidious discrimination. Yet only twenty states today extend this protection to sexual orientation and gender identity. And even the federal government only protects people from discrimination on the basis of age, race, sex, religion, national origin, disability, pregnancy and veteran status. If someone doesn’t like your hair — or lack of it — or your eye color or height or your political opinions, they can discriminate against you all they want. But does the government really even have the right to tell anyone that they must not discriminate? How can it really practically do so anyway? Few realize that when the Civil Rights Act of 1964 — signed into law just 54 years ago tomorrow, July 2nd — it came under immediate legal challenge. SCOTUS ruled the same year that the Commerce Clause gave Congress the power to make and enforce such laws. But apparently no one thought at the time to insist that such civil liberties as freedom of expression, religious liberty or any other part of the Bill of Rights conflicted with prohibitions on invidious discrimination.
The CCRC Commissioner was entirely correct in labeling “despicable” the ploy of appealing to religious liberty to justify invidious discrimination. Neither was it an attack on the baker’s theology or “hostility” toward religion. It was a rejection, rather, and hostility towards the baker’s claim that his beliefs gave him license to treat the gay couple as less than ordinary human beings finding happiness in each other and wanting to celebrate sharing their lives together. In particular, the baker was unjustified in conflating his own ideas of marriage as a holy God- and Bible-ordained sacrament with the secular legal status afforded by the government’s institution of the same name. The gay couple were not looking for any endorsement of the idea that they were partaking of the first but only of availing themselves of the latter. Their already-established relationship was simply a factual state of affairs and no more the business of the baker to find fault with than any other couple’s relationship. Instead of working himself up over “an idea that [his] heart rejects,” he could have easily simply done what he does for other couples and made a cake that would please the gay couple. For all they wanted was to celebrate their happiness even though it was admittedly and clearly not a biblical marriage as understood by the baker.
It is also interesting that the majority in Masterpiece found fault with “the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain.” Yet SCOTUS has in the past held that “religion” has to do with “belief that is sincere and meaningful [that] occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.” [from SCOTUS 1965 Seeger case] So how are such things ever to be excluded from anywhere? People are who they are wherever they are and whatever they are doing. Many, if not most people, understandably choose what they do in “the public sphere or commercial domain” and how they do it based on their deepest values and what they find most meaningful. The only thing that the ideas of state-church separation and nondiscrimination require is that religious beliefs not substitute for or intrude into a facts- and reason-based social order where religious liberty means, in part, to be free of the impositions of others’ religions. No one can get away with, for example, theft and murder with the excuse that “God told me to do it!” If someone really believes that their deity wants them to steal or murder or to hate gays, they ought to, instead of acting on such beliefs, apply some critical thinking and realize that, as this is so much at odds with reasonable (and lawful) behavior, there may be some miscommunication or misundertsanding.
There is much besides this. Controversies and difficulties relating to what liberal theologian and existentialist philosopher Paul Tillich called “ultimate concerns” — which SCOTUS cited in Seeger — will continue to arise. Each will need to be carefully and thoughtfully sorted out as well as can be managed. Under institutions predicated on reasoned principles as well as on popular opinions and sentiments, it is important that as many Americans as possible strive to learn and think about such things as are to be found in the decisions — and dissents! — of SCOTUS.
