While many businesses display signage that states they reserve the right to refuse service to anyone, their ability to do so isn’t always that simple. Yet the Supreme Court, this week, sided with one baker who refused to make a cake for a same-sex wedding. The baker cited religious reasons for his refusal. While the baker won his case, his win is not that simple.
Barry P. McDonald, a professor of constitutional law at Pepperdine University, published an opinion in USA Today. McDonald served as a law clerk to the late Chief Justice William H. Rehnquist and has put forward a new angle on the Masterpiece Cakeshop decision.
The crux of his argument is clear. The Court sided with baker Jack Phillips becasue the lower court in Colorado, in their ruling against his refusal of service, displayed clear religious bias. The Supreme Court sided with the baker, but failed to protect the rights of business owners to refuse service.
“So long as Justice Anthony Kennedy remains the swing voter on the court,” McDonald writes, “the right not to be discriminated against in the marketplace will prevail over conscientious objections — whether grounded in religious freedom or a more general freedom of belief — to serving individuals based on their sexual orientation.”
That statement, though, seems to go against the ruling issued this week. Why?
“The baker did win on the grounds that the Colorado anti-discrimination agency unconstitutionally displayed religious bias when it sanctioned him,” McDonald adds. “But Kennedy’s majority opinion sent every signal that should Colorado again seek to sanction the baker for a future refusal to serve same-sex couples, the state will win so long as it refrains from statements or actions that seem to disparage religion.”
“The following line from Kennedy’s opinion was particularly telling: ‘It is a general rule that (religious or philosophical) objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under (an anti-discrimination) law’.”
Justice Kennedy, though, didn’t find that to be applicable in this case (even though that is how the case was presented to the public).
“Two members of the Colorado Civil Rights Commission who adjudicated it demonstrated a hostility toward the notion that religion has any role to play in the commercial marketplace,” McDonald writes. “One even went so far as to declare it was ‘one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others’.”
That seems clear enough. The second point is a bit more complicated. “A division of that commission had previously decided not to sanction bakers for religious discrimination when they refused to make cakes that bore anti-gay marriage messages for Christian customers.”
In other words, Colorado already protected the rights of bakers who refused to bake for Christians.
McDonald argues that “it seems clear that at least Kennedy and his four liberal colleagues have little patience for the notion that religious beliefs can support discrimination in the marketplace.”
Yet the baker walked away victorious. Had the lower court not displayed an animosity toward his beliefs, this might not have been the case. The Supreme Court ruling is simply establishing a level playing fields. McDonald sees this as a right to neutrality, ideologically speaking, which may be a win for everyone.