On discrimination, SCOTUS can’t have their cake and eat it too

Monday’s 7-2 Supreme Court ruling in favor of Masterpiece Cakeshop is most certainly a victory for Jack Phillips, who can continue creating custom wedding cakes in accord with his strong Christian faith. Even more significantly, the ruling is a victory for all Americans who believe that we can live peaceably in society without the powerful forcing the minority to live according to a government-mandated orthodoxy.

{mosads}Conservatives knew Justice Anthony Kennedy might side with the better of his libertarian angels, but the surprise was that two of the Court’s most liberal justices concurred. Legal scholars note that this is a narrow decision, resting largely on the open hostility the Colorado Civil Rights Commission showed to Jack Phillips’ religious beliefs. Justices Kagan and Breyer joined the majority explicitly because of the Commission’s anti-religious bias, finding no fault in the law that got Phillips in trouble in the first place.

Yet while Kagan and Breyer’s interpretation of the majority opinion shows its narrowness, it also reveals the latent danger in Colorado’s law at the heart of this case — and similarly, the laws just like it that are cropping up all over the country.

It is a pleasant surprise to see that Kagan and Breyer still believe government officials must not “show hostility to religious views,” instead giving them “neutral and respectful consideration.” At the same time, they also seem to want to argue that the law itself, which says business owners cannot discriminate on the basis of sexual orientation when they provide goods and services to the public, is a good one. In reality, the hostility to religion that Kagan and Breyer claim to oppose is at the very heart of such laws.

Sexual Orientation and Gender Identity (SOGI) ordinances make arguably mutable characteristics like sexual orientation and gender identity legally akin to race by setting the terms “sexual orientation and gender identity” alongside other protected classes like race. Thus, the legal remedy intended to punish racism — once a widespread and institutionalized plague in our country — is now all set up to punish any perceived offenses against one’s sexual identity.

Under scrutiny, however, the analogy to racism just doesn’t hold up. Regardless, these laws are being designed, pushed, and passed in states across the country by LGBT activists and ideologues whose worldview depends on a particular breed of anti-religious animus. For many of the supporters of Colorado’s SOGI law under which Jack Phillips was punished, a religion that defines marriage as one man and one woman really is like racism and Nazism.

It doesn’t have to be this way. Lawmakers could come up with a solution that better defines what qualifies as “discrimination” against someone because of their sexual identity, rather than lumping the small minority of people with certain religious or moral beliefs in with actual bigotry. Kennedy’s refusal to really wrestle with this issue could even be taken as a signal for the culture warriors on both sides to work things out with better legislation or simple market fixes: i.e., use any other baker in the state of Colorado instead of picking on poor Jack Phillips and his family.

Unfortunately, activists are militantly advocating for these SOGI laws in order to punish any dissenting person, no matter how humble and insignificant, to send a message that their list of demands is the new orthodoxy.

Take the comments of one millionaire activist, whose goal is to pass these SOGI laws nationwide in order to “punish the wicked,” meaning Christians who believe in traditional marriage.  

Or take the commentary of a ThinkProgress columnist, whose analysis of the SCOTUS decision focused on defending a Colorado commission member’s comments that appeals to religious freedom are “one of the most despicable pieces of rhetoric” and that religious beliefs really have been used to justify racism and Nazism: “The true statement about anti-gay beliefs that set off Justice Kennedy.”  

It is little surprise, then, when the Commission interprets a law promoted for by anti-religious activists to mean exactly what those activists intended. The very foundation of modern day SOGI laws is a worldview in which traditional religious beliefs on marriage are not to be understood and possibly tolerated, but to be despised, ridiculed, and banished from the public square.

In a biting repudiation of the way Colorado’s Commission compared Phillips’ beliefs to a justification of slavery and the holocaust, Kennedy writes that:

“To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere.”

This statement is a crushing blow to the ideologues who try to characterize religious belief as simply a “license to discriminate.” Yet while Kennedy points out the issues in the interpretation of the law, the problem clearly rests in the law itself. The Supreme Court’s opinion is the correct one, but it is not enough. In order to prevent the persecution of honest, faithful Americans like Jack Phillips, anti-religious SOGI laws around the country must be stopped.

The Supreme Court obviously believes that hostility towards religion has no place in our government, though it took the extreme, explicit rhetoric of the Colorado Commission to draw out their condemnation. But as much as they would like, Kagan, Breyer and even Kennedy can’t have it both ways as long as the law itself is bad. LGBT rights and religious freedom can coexist — but only once SOGI laws themselves are eradicated or seriously reshaped.

Anna Anderson is Director of Religious Freedom for American Principles Project (APP), a non-profit organization dedicated to defending our founding principles.