The Masterpiece Cakeshop case isn’t about religious freedom. It’s about right-wing culture wars. (More)
First, that beautiful photo isn’t a real cake. It’s a 2012 billboard supporting New Zealand’s marriage equality bill and the ad was paid for by the parish of St. Matthew-in-the-City, in Auckland:
Anglican clergy are not yet authorised to conduct wedding ceremonies for same-gender couples. However, as we continue to work hard toward the day when we can, we will be happy to arrange non-Anglican clergy to conduct ceremonies for same-gender couples while offering all the same love and support we would to any other couple.
So here’s a hearty “Kia Ora!” to the wonderful folks at St. Matthews:
As for the U.S. Supreme Court …
“Undermine every civil rights law since year 2”
… it’s always dicey to predict decisions based on oral arguments. But it looks as if the case of Masterpiece Cakeshop vs. Colorado Civil Rights Commission will come down to Justice Anthony Kennedy:
Lines began forming outside the Supreme Court last week for one of the biggest oral arguments of the year, in the case of a Colorado man who says that requiring him to create custom cakes for same-sex weddings would violate his religious beliefs. At the end of over an hour of debate, it became clear that, at least in one respect, the case is just like so many others: It is likely to hinge on the vote of Justice Anthony Kennedy, who initially seemed sympathetic to the same-sex couple but later expressed real concern that Colorado had not been sufficiently tolerant of the baker’s religious freedom.
Let’s dispense with the right-wing prattle about “religious freedom.” The owner of Masterpiece Cakeshop claims a right to express his religious beliefs in his work. But that’s a pretense. Like many Christians, he may believe that Christianity is the one “superior” religion and all non-Christians go to Hell. But if he refused to bake wedding cakes for Jewish, Buddhist, Hindu, or Muslim couples, that would be a clear violation of the 1964 Civil Rights Act. He deserves no special pass merely because the ‘religious belief’ at issue concerns LGBT marriage.
But many of the more liberal justices’ questions seemed to focus on trying to convince their more conservative colleagues that, even if they might be inclined to vote for Masterpiece, it would be next to impossible to write a ruling for the baker that did not, as Justice Stephen Breyer put it, “undermine every civil rights law since year 2.” They peppered Waggoner with questions about what kinds of wedding services would or would not be protected under her rule, and they rarely appeared convinced by her efforts to draw distinctions.
Indeed the baker’s lawyer wants a exemption just for bakers:
Justice Elena Kagan led the charge, asking Waggoner whether a hairstylist or a make-up artist could cite his religious beliefs as the basis to refuse to provide services for a same-sex wedding. When Waggoner responded that they could not, Kagan pushed back. The make-up artist is an artist, she stressed, and could feel the same way about his craft as Phillips does. Waggoner countered that doing someone’s make-up is not speech, prompting Kagan to retort that “some people might say that about cakes.” And Kagan expressed disbelief that a baker’s craft is expression but a chef’s, according to Waggoner, is not.
That’s some serious chutzpah.
“This is fascinating”
Speaking of chutzpah, the National Review’s David French turns the transcript on its ear:
JUSTICE KENNEDY: – has introduced the question of the Free Exercise Clause in this case. We didn’t talk about it earlier. And perhaps you want to get on to speech, but in this case, pages 293 and 294 of — of the Petitioner appendix, the - Commissioner Hess says freedom of religion used to justify discrimination is a despicable piece of rhetoric. Did the Commission ever disavow or disapprove of that statement?
MR. YARGER: There were no further proceedings in which the Commission disavowed or disapproved of that statement.
This is fascinating. Justice Kennedy labels a common leftist talking point – that freedom of religion is used to justify discrimination – a “despicable piece of rhetoric.”
Yes, it is fascinating … because it’s patently false. Justice Kennedy did not say that. He quoted a Colorado Civil Rights Commission member who said it’s “despicable” to cite religion as an excuse to discriminate. And that criticism is not merely “a common leftist talking point.” The commissioner cited actual examples where people used religion to justify slavery or deny the Holocaust. Bob Jones University cited their religious beliefs to justify racial discrimination, and an 8-1 U.S. Supreme Court said that was not a defense. And for the record, that decision – not Roe v. Wade – was the case that jump-started the so-called ‘Religious Right.’
So French trots out the old Hate The Sin Not the Sinner excuse:
JUSTICE KENNEDY: Well, but this whole concept of identity is a slightly – suppose he says: Look, I have nothing against – against gay people. He says but I just don’t think they should have a marriage because that’s contrary to my beliefs. It’s not -
MR. COLE: Yeah.
JUSTICE KENNEDY: It’s not their identity; it’s what they’re doing.
MR. COLE: Yeah.
JUSTICE KENNEDY: I think it’s – your identity thing is just too facile.
Yes. A thousand times yes. A person’s actions are not the same thing as a person’s identity. Phillips never, ever, discriminated on the basis of identity. He merely refused to use his talents to support actions and messages he believes to be immoral. Justice Kennedy gets the key distinction in this case. Now let’s hope this thought makes it into the opinion of the Court.
So it’s fine to ‘be’ LGBT, so long as you don’t ‘do’ any icky LGBT stuff that some baker “believes to be immoral?” Like, say, getting married? Puh-leeze.
“The fate of Western Civilization”
But don’t take my word for it that this is all about right-wing culture wars. RedState’s streiff admits it:
As was expected, you have four solid votes in favor of religious freedom and four solid votes in favor of using the coercive power of the state to impose RightThinkTM upon the citizenry. The fate of Western Civilization again rests on the scrawny, unmanly shoulders of Anthony Kennedy. The same set of shoulders which let Lawrence and Obergefell slip away.
Curiously enough, Kennedy might be the fifth vote in favor of Judeo-Christian tradition.[…]
And don’t take my word for it that these people think religion should justify other discrimination. Streiff admits that too:
There was a lot of given and take on public accommodations and “what if the couple were three-legged red-haired Eskimo gypsies?” Those arguments seemed, in my view, designed by the progressive on the courts to make this a lot more complicated than it has to be. Perhaps this is just my own bias. I’m pretty hostile to the whole “public accommodations” argument so long as the government isn’t the one telling me I can’t serve people because of race or some other factor. I don’t see any difference between the government telling me who I must serve and who I can’t serve. Either way my time and my property are being appropriated by the government. Ultimately, money talks and bullsh** walks and the only person actually harmed by refusing to serve a customer is the person losing the money.
So no, this case isn’t about religious freedom at all. It’s about conservatives who want to roll back the clock to 1950, or 1850, when white Christian men could discriminate against anyone they didn’t like. Or really, they want to roll that clock back to 1620, when the Puritans came to the New World to form a society where they could force everyone else to follow their religious beliefs:
But the Puritans didn’t leave England to found a society where all religions would be tolerated. After all, they were granted the pejorative moniker “Puritan” in England because of their efforts to purge Catholic influences from the Anglican Church. They sought religious freedom only for themselves.
In 17th-century Europe, every kingdom had an official religion, and the monarch was the head of the church. There were a few exceptions, but it was certainly the case in England, where King Charles I led the Anglican Church when the Puritans left for America. Since the Puritans wanted to change Anglican worship by, among other things, ridding priests of expensive robes, putting an end to kneeling for Communion and doing away with the Book of Common Prayer, they were persecuted for treason – for challenging the king’s authority to dictate forms of worship. So they went to America to create a political entity where their brand of “reformed” Anglicanism was the only religion.
Imagine the uproar if a baker – citing “religious freedom” – refused to prepare a cake for a wedding at a church known for its hardline anti-LGBT proclamations. After all, these are people who demand that we all honor their religious holidays to the exclusion of all others. Just like the Puritans, they demand “religious freedom only for themselves” …
… and that’s not religious freedom at all.
Good day and good nuts