Opinion

SLOAN | Supreme Court’s ruling was narrow — and properly so

Author: Kelly Sloan - June 11, 2018 - Updated: June 11, 2018

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Kelly Sloan

It is a good thing that the Supreme Court’s ruling on the Masterpiece Bakery case was not really intended to put any part of the underlying argument to rest, because it certainly did not. What it did do was jerk the reins on institutionalized anti-religious bias and exhibit rare and welcome self-restraint on the part of the court.

There was understandable initial euphoria expressed by First Amendment fans and allies of Jack Phillips, the besieged Lakewood baker at the heart of the controversy, but there was no shortage of overwrought hand-wringing by all sides in the days since.

Some conservatives worry that the narrowness of the decision paves the way for future tribunals to drop the guillotine on freedom of speech and religion, as the Colorado Civil Rights Commission did to Phillips, by imposing no further limit than admonishing them to do so with more polite language. On the left, the concern is that the high court has assigned official sanction for the return of Jim Crow and public stonings.

Neither assertion bears up to hard scrutiny, but the concerns from the left are easier to dispatch. The case, from the beginning, really had nothing to do with turning any clocks back on gay rights. Mr. Phillips did not deny service to the gay couple, whose request to him for a custom-designed cake to celebrate their union got this whole ridiculous ball rolling; he served all comers to his shop, and indeed the couple in question could have turned around, picked any item they wished off the shelf, paid for it and walked out. What Mr. Phillips did was to decline to use his inherent talents to create something unique and for a specific purpose, one which scandalized his deeply felt beliefs.

Public accommodation laws, enacted in the civil rights legislation of 1964, expressly prohibit refusal of service based on certain characteristics – race, religion, gender, sexual orientation, etc. But Mr. Phillips refusal was based not on the person, but the activity.  Whether you feel he was morally right or wrong, the distinction is important.

Even this wasn’t the question which the Supreme Court took on. The focus, rather, was on the behavior of the Colorado Civil Rights Commission, which displayed an overt hostility to religion in hearing the case after the gay couple in question elected to assuage their annoyance by loosing the full force of government on the baker rather than head down the street to another one.

Among the comments levelled at Mr. Phillips from the Commission was this gem, singled out by Justice Kennedy: “freedom of religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust.”  The historical solecism aside, that kind of statement is eerily reminiscent of the histrionics displayed in Nazi and Soviet kangaroo courts in the bad old days. And that is what the decision hinged on. Arguably a pretty far cry from declaring open season on gays.

The widely held conservative critique is that the decision is too narrow to have done much – if any – good. It is true that the deeper issue – delineating the boundaries of First Amendment freedoms and public accommodations for protected classes – was sidestepped, leaving open the likelihood of a future revisitation. The SCOTUS decision was indeed a narrow one – and properly so.

Whether the justices’ motives were gallantly philosophical or based simply on a lack of appetite for dealing with the issue, it is refreshing to see the high court restrain itself. The temptation to serve as moral arbiter for the entire nation runs deep in the Supreme Court and has been the source of all kinds of judicial mischief over the last half-century or more. Federal judicial decisions ought to be narrow, the details left to the individual states; the SCOTUS ought to be commended when it stays in its lane.

Moreover, what the Court actually ruled on is not insignificant – it marks what may be the first official check on the intolerance of religion that has been metastasizing throughout our society; an official recognition that religious liberty is important, deserving of its place at the top of our Bill of Rights, and that faith is more than just the semi-amusing heterodoxy that the oligarchs of our popular culture have consigned it to.

There is of course more to all this. For some, the libertarian impulse begs the question of whether the public accommodation laws of the 60’s remain necessary, or even moral – should not one be permitted to do business, or not, with whomever one pleases, free of state intervention in the matter? But such governmental guiderails remain popular, and perhaps our tribalistic nature necessitates their continuation. Still, it is a pity that more time cannot be devoted to the question, untainted by the political cacophony.

In the meantime, Jack Phillips remains free, for now, to conduct his business as his conscience allows, and gay couples remain as free as anyone to seek for hire the skills of any who are able and willing to meet the particularities of their demands. And that is all anyone should be asking.

Kelly Sloan

Kelly Sloan

Kelly Sloan is a political and public affairs consultant and recovering journalist based in Denver. He is also an energy and environmental policy fellow at Centennial Institute.