Masterpiece Cakeshop Ruling Looks Tasty But Is Only Half-Baked… Meantime
Dov Fischer
by

The faith community of America’s Bible-believing-and-adhering Christians, Catholics, and Jews has much reason to take comfort in Monday’s decision by the United States Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. If the bakery had lost, such a decision could have augured a theologically perilous turn, marking a first step leading towards abrogating America’s Constitutional guarantees historically protecting religious freedoms. If the Court had held that religious people can be coerced into writing words they do not believe and that frontally contradict their Biblical faith and can be compelled by Government edict to create artwork celebrating events that are repugnant to their deepest core religious values in their relationships with G-d, then a tidal wave of pinpointed religious repression could have ensued, slowly but surely, with one corollary Court opinion after another peeling away one thin layer of protection after another, in years to come. Synagogues and churches in time could have faced closure for refusing to host theologically forbidden marriages. Rabbis, pastors, priests could next be in line facing arrests and severely bankrupting monetary fines, even imprisonment on criminal charges that could end their careers in the public arena. Perhaps for refusing to conduct such marriages. Perhaps even for delivering sermons from the pulpit on Leviticus 18:22 and 20:13. That was what potentially was at stake: At what point does the very first freedom in the Bill of Rights, freedom of religion — the freedom that America’s Founding Fathers placed before even freedom of speech, of assembly, of press, of the right to bear arms, of protection from search and seizure without warrant, of protection from self-incrimination and guaranteeing the right to confront one’s accuser, the right to a jury trial, protection from cruel and unusual punishment — come to an end?

Religious freedom did not exactly win in Masterpiece, but it survived the latest assault to live another day. Just as a Jewish baker still cannot be forced by Government to bake a cake celebrating Hitler, an African-American still cannot be forced to bake a cake with a “Confederate flag” motif celebrating slavery, and a proud American patriot cannot be forced to create a piece of artwork celebrating Colin Kaepernick, the law of the land still will not follow the Colorado Civil Rights Commission into coercing a person of religious Biblical conscience to participate in enhancing the celebration of an event that she privately mourns as a matter of religious conscience.

By a 7-2 opinion, aggregated through various concurrences joining to support a majority opinion authored by Justice Kennedy, the divided Court reached an excellent result, but it did so by adopting a tepid and diluted focus and reasoning that leaves the real and deeper issues aside for yet another case that surely will arrive on another day. The Court could have ruled in clear and straightforward terms that, even as gay people may marry consistent with Obergefell v. Hodges, so it is that religious adherents whose theologies truly deem such marriages to be a nullity forbidden in the eyes of G-d are free to refrain from aiding or otherwise participating in fostering or enhancing such unions. That kind of ruling would have given clear protection to bakers, florists, photographers, houses of faith, and clergy, among others. But that was not the Masterpiece opinion. Rather, this Masterpiece, like the Mona Lisa, smiled only mysteriously.

What may well have happened behind the Court’s closed doors is, first, that the conservative core of the Court won over Justice Kennedy to this one — because he had said in his Obergefell opinion, 135 S. Ct. 2584 (2015), that the right to gay marriage must not become a ground for limiting religious believers’ rights to believe and act otherwise:

[I]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.

Having thus cobbled together a majority of five for the bakery, that majority further may well have decided that they profoundly wanted to get at least some buy-in from at least some of the Liberal Democrats on the Court, no matter what the price, in order to present a broader consensus vote to the public. Chief Justice Roberts previously has demonstrated, in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), the original Obamacare opinion in which he tried to contort its manifest legal problems into ersatz legality by shoehorning it into a tax analysis, that he cares very much that the public respect the Court as an impartial arbiter of justice that views issues of law objectively and without political bias. Had the decision in Masterpiece been more clear and straightforward, but also tightly divided 5-4, there would have been vast media commentary portraying the decision as the direct result of President Donald Trump having placed new Justice Neil Gorsuch on the bench — with the Left ruing how different it all would have been if the Republicans had not instead balked at approving Obama’s last feeble pick, Merrick Garland. Thus, it seems, to avoid that kind of political fall-out and feeding frenzy, to convert the Masterpiece decision from one of conservatives-and-religionists versus liberals-and-secularists, and to cast it instead as a broad-based 7-2 decision, the justices presumably engaged in backroom horse-trading reminiscent of the first Bush v. Gore decision, Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000), where the politically divided Court nevertheless voted unanimously. In that initial situation, with the legitimacy of an American Presidential election on the line amid half-popped chads, it seemed that the liberal Democrat justices and their conservative Republican colleagues had reached a deeper consensus behind closed doors that, for the public weal, the rulingneeded to be unanimous.

Although the Masterpiece majority could not win over the more extreme-liberal justices, Sonia Sotomayor and Ruth Ginsburg — the latter now at an age and time in her life journey when she no longer even bothers to disguise her outright left-oriented political Weltanschauung nor to camouflage the depth of her contempt and hatred for President Trump — the five conservatives did win Justices Stephen Breyer and Elena Kagan to their majority by crafting an opinion that skirted the real issues on the table — harmonizing the conflicting rights of gays to marry and of religious people to follow the dictates of their G-d and His law — and instead focused solely on one remarkably crude and bigoted “Civil Rights Commission” in Colorado that overtly and contemptuously denigrated religious beliefs on the matter as being a mere pretext by bigots to discriminate. That Commission had promoted a clear double standard, allowing other bakers to refuse to bake cakes when customers sought messages hostile to gay marriage; yet that Commission was unyielding in denying Masterpiece Cakeshop its right to refuse to bake a wedding cake celebrating gay marriage. Moreover, some of the Commission’s transcribed text revealed outright bias and bigotry against religion. It has been said of such people on the Left that, if they did not live by double standards, they would live by no standards at all.

So Justices Gorsuch and Alito — and, compromising their weaker and more practical beliefs to a lesser degree, Chief Justice Roberts and Justice Kennedy — steered away from a ringing declaration of principles that would protect free exercise of religion and free expression in the face of pressure to endorse gay marriage. Instead, they agreed to direct their focus only at the patently biased way the Colorado process and Colorado Commission worked in this case. Not every such future case will be marked by such glaringly bigoted underlying bias — and, even more so, the anti-religious bigots on radical “Civil Rights Commissions” now operating in some of America’s deepest-blue states now have their SupremeCourt-authored manual on how to operate prejudicially against religionists without getting caught.

In his separate opinion, concurring in the result but not with the underlying analysis, Justice Thomas (notably with Justice Gorsuch joining) reflects more clearly the direction towards which the opinion would have gone — the full nine yards — if the Court’s conservatives had not decided that, for their political purpose of endowing the day’s decision with maximal 7-2 mainstream acceptability, they needed somehow to get two liberal Democrats on board with them. Justice Thomas cites Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995) for the proposition that Government cannot force speech or expression on people, as the Court then held that sponsors of a St. Patrick’s Day event could not be coerced into admitting an GLB group into their parade. Just as the Court previously has held that nude dancing is expressive communication in Barnes v. Glen Theatre, Inc.,501 U.S. 560 (1991) and that burning the American flag is protected expression, Texas v. Johnson, 491 U.S. 397 (1989), so it is that the artistic rendering of a wedding cake, which artistry is central to Masterpiece Cakeshop’s business, needs to be treated as Constitutionally protected expression, over and beyond the dimension of protecting the baker’s religious freedom. It may well be expected that the artistry entailed in photographing stills, filming videos, arranging floral displays, playing music, even in composing text and in styling the wording of sermons, all will enjoy similar protection when their day comes before the High Court.

There also may have been a second underlying thought, expressed or just contemplated, impelling the four conservative justices to go the vanilla path. Unspoken, perhaps not even articulated by one to another, the four conservative justices — Thomas, Alito, Gorsuch, and Roberts — also may have been thinking that Justice Kennedy surely will retire soon (in weeks, a year, or two maximum) and that Justice Ginsburg, for all her determination to outlast President Trump in Washington, probably will not do so. In such a scenario, the time is nigh when the Court will be at least 5-4 solidly conservative, with a more solid if imperfect conservative like Chief Justice Roberts replacing Justice Kennedy as the least dependable conservative, and thus as the swing vote, and soon thereafter even could be a 6-3 conservative Court. In short order, then — a year or two or three — the Supreme Court thereupon can and will accept the inevitable next case of this sort (the baker, the photographer, the florist fined into bankruptcy by a radical-left “Human Rights Commission” in a deep blue state for refusing to go against their Biblical faith), and that newly constituted 5-4 or 6-3 more-conservative Court then will be able to set aside Monday’s Masterpiece Cakeshop opinion, not by defying the Court’s defining jurisprudential rule of stare decisis overtly and overruling it, but instead by just talking around it, paying lip service to it, and then adopting much of Justice Thomas’s concurrence in Masterpiece as the Court’s majority opinion in that next case. At that point, the bare-majority justices who punted today will give clear direction going forward for principled backing for religious freedom and protecting free expression and speech from intimidation by others who demand obeisance to the reigning politically correct agenda of the moment.

Dov Fischer
Dov Fischer
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Rabbi Dov Fischer, Esq., a high-stakes litigation attorney of more than twenty-five years and an adjunct professor of law of more than fifteen years, is rabbi of Young Israel of Orange County, California. His legal career has included serving as Chief Articles Editor of UCLA Law Review, clerking for the Hon. Danny J. Boggs in the United States Court of Appeals for the Sixth Circuit, and then litigating at three of America’s most prominent law firms: JonesDay, Akin Gump, and Baker & Hostetler. In his rabbinical career, Rabbi Fischer has served several terms on the Executive Committee of the Rabbinical Council of America, is Senior Rabbinic Fellow at the Coalition for Jewish Values, has been Vice President of Zionist Organization of America, and has served on regional boards of the American Jewish Committee, B’nai Brith Hillel, and several others. His writings on contemporary political issues have appeared over the years in the Wall Street Journal, the Los Angeles Times, the Jerusalem Post, National Review, American Greatness, The Weekly Standard, and in Jewish media in American and in Israel. A winner of an American Jurisprudence Award in Professional Legal Ethics, Rabbi Fischer also is the author of two books, including General Sharon’s War Against Time Magazine, which covered the Israeli General’s 1980s landmark libel suit.
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