|Jack Phillips - the face of bigotry and hate hiding behind the smoke screen of "religious freedom".|
While the majority ruled in Masterpiece Cakeshop on a narrow basis for Christian extremists Jack Phillips - and, in my view, court manufactured finding that the Colorado Civil Rights Commission’s ruling against Phillips had been "infected by religious animus" - virulently anti-gay Christofascists are nonetheless celebrating the ruling as a wide ranging victory. Individuals like Family Research Council ("FRC") president Tony Perkins, a man with a well documented ties to white supremacists groups, who parades around as a "godly Christian" while fleecing the bigoted and gullible, a crowing about the "victory" and no doubt looking for the next hand picked plaintiff to continue the assault on LGBT rights. The irony, of course, is that the Court found the Civil Rights Commission's supposed "religious animus" to be improper, yet Phillips' religious based anti-gay animus was given a pass. The even large issue is who else will now be subject to targeting by white Christofascists? Non-Christians? Interracial couples? Muslims? A piece in the New York Times looks at this wrong-headed ruling The full opinion is here). Here are article excerpts:
The Supreme Court on Monday ruled in favor of a Colorado baker who had refused to create a wedding cake for a gay couple. The court’s decision was narrow, and it left open the larger question of whether a business can discriminate against gay men and lesbians based on rights protected by the First Amendment.
The court passed on an opportunity to either bolster the right to same-sex marriage or explain how far the government can go in regulating businesses run on religious principles. Instead, Justice Anthony M. Kennedy’s majority opinion turned on the argument that the Colorado Civil Rights Commission, which originally ruled against the baker, had been shown to be hostile to religion because of the remarks of one of its members.
At the same time, Justice Kennedy strongly reaffirmed protections for gay rights. “The outcome of cases like this in other circumstances must await further elaboration in the courts,” he wrote, “all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
On the one hand, Justice Kennedy has written every major Supreme Court decision protecting gay men and lesbians. On the other, he is the court’s most ardent defender of free speech. On Monday, Justice Kennedy chose a third path, one that seemed to apply only to the case before the court.
Writing for the majority in the 7-to-2 decision, he said the Civil Rights Commission’s ruling against the baker, Jack Phillips, had been infected by religious animus. He cited what he said were “inappropriate and dismissive comments” from one commissioner in saying that the panel had acted inappropriately and that its decision should be overturned.
“The neutral and respectful consideration to which Phillips was entitled was compromised here,” Justice Kennedy wrote. “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”
That passage echoed his plea for tolerance in his majority opinion in 2015 in Obergefell v. Hodges, which recognized a constitutional right to same-sex marriage. In that decision, he called for “an open and searching debate” between those who opposed same-sex marriage on religious grounds and those who considered such unions “proper or indeed essential.”
The breadth of the court’s majority was a testament to the narrowness of the decision’s reasoning. Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Samuel A. Alito Jr., Elena Kagan and Neil M. Gorsuch joined Justice Kennedy’s majority opinion. Justice Clarence Thomas voted with the majority but would have adopted broader reasons.
Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, dissented.
Some gay rights groups took a darker view of the decision. “The court today has offered dangerous encouragement to those who would deny civil rights to L.G.B.T. people,” said Rachel B. Tiven, the chief executive of Lambda Legal. “We will fiercely resist the coming effort that will seek to turn this ruling into a broad license to discriminate.”
Rest assured, a broader attack on LGBT rights will be coming. The ultimate irony is that when one looks at non-discrimination and public accommodation laws, all of the protected categories - age, race, sexual orientation, national origin, age, - are things that one cannot control. Only one category - religion - is something that is changeable and relies on a conscious decision - an option, if you will - to embrace a particular dogma and form of ignorance and/or bigotry. If anything should be forced to yield to immutable characteristics, it should be religious belief which all to often is based on myths and legends.