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If you had to choose a word to describe the news of today’s Supreme Court ruling in the Masterpiece Cakeshop case, you could do worse than “stupid.”
In case you’ve been hiding under a rock recently, Masterpiece involves a Colorado baker who refused to sell a wedding cake to a same-sex couple due to his religious beliefs. He was substantially fined by the Colorado Civil Rights Commission, but with the help of the ADF, appealed the case all the way up to the Supreme Court, where he ultimately emerged victorious.
The decision was “narrow” in the sense of being limited in scope and more concerned with procedure than setting broad precedent. That didn’t stop Brit Hume, Donald Trump Jr. and other conservatives from crowing about its wide margin, in contravention of the English language, subtlety, and comprehension skills. Mook is as mook tweets, I suppose.
The ruling itself doesn’t directly give a green light to religious discrimination, though that’s surely cold comfort to those it affects. Anthony Kennedy, writing for the majority, appears to have concluded that the state of Colorado copped an unusually hostile attitude toward the Christian beliefs of Masterpiece’s owner Jack Phillips. As Stephanie Russell-Kraft pointed out during oral arguments last year, it seems Kennedy fell for some right-wing spin centering on this remark from one of the Civil Rights Commissioners:
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.
It’s simply a factual statement followed by an anodyne opinion. I don’t think people should use their religion to hurt others, either. Does that make me a bigot?
The broader point here is that Kennedy’s reasoning is simply incoherent. There is no way for government to remain “strictly neutral” when it comes to religious values. Because those values play out in ways that affect the rest of society—inevitably, government entities will have to pick religious winners and losers. You can argue that the way that decision was made in this case wasn’t fair, but that’s a weak argument, as shown above, and it has the dire side effect of measuring human rights by the politeness of the decision makers.
In the end, law professor and aspiring senator Richard Painter summed it up pretty well on Twitter:
We needed a clear ruling against discrimination in commerce excused by "religion" What we got was a procedural ruling. The Court simply kicked the can down the road, a road riddled with signs that the norms of civilized society are in great danger.
— Richard W. Painter (@RWPUSA) June 4, 2018
The court could and should have made a strong ruling against discrimination. Instead they kicked the can down the road, which is going to give every cultural revanchist an excuse to deny services based on “sincerely held religious beliefs.” I look forward to America adopting the Northern Irish model of social cohesion. Talk about stupid.