In early December 2017, the Supreme Court heard oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case concerns a weave of questions on freedom of religious expression, limitations on speech, and laws on public accommodations in the state of Colorado.
In an essay for the Claremont Review of Books Digital, “Jack Phillips Has His Day in Court,” Prof. Arkes reflects upon how the justices approached the case during oral argument and examines the grounds and scope of their questions.
“Phillips readily served gays and lesbians in his business, but he declined when asked to make a cake to celebrate the wedding of a gay couple. Phillips had moral reservations about same-sex marriage. anchored in his religious convictions. The request for that cake, bearing that meaning, was just a step too far for Phillips; it would have marked his acceptance of the cake’s purpose. That elementary point seemed to elude Justices Ginsburg, Kagan and Sotomayor: with that simple involvement, Phillips would become complicit in something he regarded as wrongful. And yet, by holding back he was marked a serious wrongdoer under Colorado law. He faced fines and compulsory counseling, the object of which was to purge him and his employees of “bigoted” reflexes. Phillips was not compelled to speak words of acceptance and praise for same-sex marriage. But his “performative” act, in making the cake, could have been taken as a moral endorsement…”
“But what exactly had the law sought to forbid and punish when this case had first arisen? Justice Alito recalled a couple of salient facts that were strangely screened from the record: in 2012 the laws of Colorado offered no acceptance of same-sex marriage, or even of civil partnerships. Phillips himself was never averse to serving gays or lesbians. He rejected only the notion that marriage may be regarded legitimately as anything other than a legal union between one man and one woman. That was the decisive point on which his judgment turned, and nothing in that judgment was stamped as wrongful in the laws of Colorado at the time. Had it simply become wrongful in the sub-legal mores of Colorado to express moral reservations about same-sex marriage and the homosexual life? In other words, when the case was viewed from this angle, one could challenge the very ground of the law, without needing to raise any argument about religious belief or coerced speech.”
“What was at work at every turn among the drafters and enforcers of the law was that sense of those people so depraved, so backward in their understanding of sexuality, that they would harbor reservations about same-sex marriage…It was the brutally explicit recording of those sentiments that finally triggered the recoil of Anthony Kennedy. Kennedy cited the remark made by one of the commissioners enforcing the law, Commissioner Hess, who remarked that the claim of religious belief brought forth to justify discrimination in these cases is “a despicable piece of rhetoric.” He then put the question to the Frederick Yarger, the Solicitor General of Colorado, defending the law: “Did the Commission ever disavow or disapprove of that statement?” It had not. Kennedy put the question then more sharply: “Do you disavow or disapprove of that statement?” Yarger wavered for a while until he finally conceded that he would indeed disavow that sentiment…”
“What has likely been triggered here is Justice Kennedy’s libertarian side, his aversion to people getting stigmatized and beaten up. But if he is truly willing to carve out a space for the people who bear reservations about same-sex marriage, he could be taking the step that begins a critical scaling back in the reach of the Obergefell case. It would be a notable move away from the insistence that same-sex marriage is so deeply rightful that anyone who calls it into question may be rightly condemned and punished. And if that move takes place, it could break the engine of repression that has been set in motion…”
You may read the full piece here.