A Decision That Isn’t

Well, the United States Supreme Court just emulated Solomon.

Remember the biblical story in which two women claimed to be the mother of a baby, and demanded that Solomon decide between them? He proposed to cut the baby in two, knowing that the real mother would withdraw her claim in order to protect the baby. The lesson from that parable? Solomon was a smart guy.

So is Justice Kennedy.

The case before the Supreme Court was poised to add lots of fuel to America’s already raging culture war. In 2012, a Colorado baker had refused to create a wedding cake for a same-sex couple, citing his religious beliefs. (This wasn’t a refusal to sell a cake that already existed; the baker had evidently been asked to create one especially for the couple. He argued that doing so would amount to compelling his speech in favor of same-sex marriage, which he opposed.) At the time, Colorado did not recognize same-sex marriages, but the state had a civil rights law that included protections for LGBTQ citizens, and the state’s Civil Rights Commission ruled that the baker had violated that law, and intermediate courts upheld the Commission.

The Supreme Court reversed, ruling 7-2 for the baker. Sort of.

Although it is hard to fault the logic of the dissent by Ruth Bader Ginsberg and Sonia Sotomayor, who argued that baking a cake is not the expression of an opinion, the majority decision in the Masterpiece Cake case was a masterpiece. (Okay, terrible pun.) As USA Today reported,

the long-awaited decision did not resolve whether other opponents of same-sex marriage, including bakers, florists, photographers and videographers, can refuse commercial wedding services to gay couples. In fact, the court on Monday scheduled a similar case involving a Washington State florist for consideration at their private conference Thursday.

The decision reiterated the rule that business owners generally cannot deny equal access to goods and services under a neutral public accommodations law. The result in Masterpiece turned instead on the Court’s finding that the baker had been treated prejudicially by Colorado’s Civil Rights Commission– that the Commission had demonstrated a hostility to religion in its treatment of the case.

Kennedy reasoned that Phillips, in refusing to create a same-sex wedding cake, had good reason to believe he was within his rights. State law at the time allowed merchants some latitude to decline specific messages, such as those demeaning gay people and gay marriages.

The government cannot impose regulations hostile to citizens’ religious beliefs, the ruling said. But it was limited to Colorado’s treatment of Phillips; had the process been fair, Kagan and Breyer likely would have been on the other side, and Kennedy would have had a tougher decision to make.

“A vendor can choose the products he sells, but not the customers he serves — no matter the reason,” Kagan wrote, joined by Breyer. “Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples.”

The plaintiff won. He gets a new hearing. However, the ruling is unlikely to affect other claims of discrimination by same-sex couples.

The Court’s decision deprives the Religious Right of a grievance that would have been useful for fundraising and political organizing, it does no damage to gay civil rights generally, and it is too narrowly tailored to be used as a precedent by others claiming a religious right to discriminate. If you are going to “lose” a case, this is clearly the way you’d want to lose it.

Well done, Supremes.


  1. Many on both sides see this as a “win” for the side of bigots using their religion as a cover. Thanks for filling in some of the details.

  2. Sheila; you and I will be on the well-known fecal list of many with our view of this SCOTUS finding. I have many lesbian and gay friends and in-laws whom I hope will listen to reason before acting like Trump supporters and avoiding me like the plague.

    Was it NOT the baking of the cake at issue but the requested decoration of it for the same-sex wedding? As you have carefully explained the legality of this issue in the past; goods on display for sale cannot be refused to certain persons due to anyone’s religious beliefs. I immediately thought of your own ACLU case years ago regarding the Nativity scene displayed on Monument Circle throughout the Christmas (winter) holiday season. I also immediately knew this would stir up issues which should have been laid to rest.

    I firmly believe the baker and the florist and all others who use religious excuses for not selling materials or providing services to minorities, those of obvious other religions and all LGBTQs is done solely for racist, bigoted reasons based primarily in hate. But; here we go again, being sidetracked from issues of life-and-death levels which are escalating daily – sometimes from minute-to-minute – from Trump’s insane ranting and actions and the Republican Congress sitting idle.

  3. Gays, bigots and wedding cakes. If I remember correctly, the bigot cake makers went out of business because the people stopped buying from them. That’s real justice.

    Bradford Bray wrote yesterday, “Needless to say, not much was taught about the revolutionary humanitarian justice filled Jesus. Somehow that Jesus (and his radicalized parables aimed at the powerful and wealthy) didn’t sink in or never was presented at their pulpits or classrooms! Obscene.”

    It brings out my favorite question, “What would Jesus do?”

    Even the Pope acknowledges that people are born gay. Sorry Mike Pence, but you can’t send them to North Carolina to be “reformed straight”.

    What would this planet look like if Jesus was shown as the liberal he was and how he spoke to those in power and control over the Jewish Synagogues and Rome?

    He didn’t die for our sins…he died because his message was a threat to those in power (the establishment).

    The list of similar deaths are long and becoming longer.

    My understanding of our “lawmaking” is they exist where man’s morality fails. But if religion is propagating and perpetuating a lie the powerful approve of, no wonder we’ve not evolved spiritually and why there is so much hatred in this world. Diversity is looked upon in fear, versus love.

    Thank you, Bradford.

  4. I wonder how the decision will be played by Trump and Pence for the media? Not a clear victory led by the now-conservative majority SCOTUS. I guess we’ll have to wait for the tweets or one of Pense’s powerful speechs.

  5. Here is an essay I wrote a few years ago when I lived in Texas. The continued absurdity of making stuff up about Jesus’ alleged statements is nauseating and a waste of energy for everyone. Using the Bible as the sole authority, instead of the brain, is how individuals tie their lives up in knots and proceed to become hypocrites.
    My Favorite Liberal
    Vern Turner
    Many so-called conservatives align themselves with Christian ideals and values. One is, therefore, compelled to validate those passionate proclamations and how they apply to political or social discourse. Note also that here in the Bible belt, where the buckle seems to span Texas and Oklahoma, many with a more liberal persuasion share good, solid, citizen-oriented values irrespective of their religious beliefs. Why, there are even proclaimed atheists who share these values. So, who has a corner on these values and what are they, anyway?
    To answer these and many other questions, let’s turn to some words attributed to the most famous liberal in all Christiandom.
    The Spirit of the Lord is upon me, because he hath anointed me to preach the gospel to the poor; to set at liberty them that are bruised.
    This is some job description. With this assigned task, what did he say and do about it.
    Blessed be the poor, for yours is the kingdom of God. Blessed are you, when men shall hate you, and when they shall separate you from their company, and shall reproach you and cast you out your name as evil…
    Didn’t we hear the Republican presidential candidate recently do a lot of “casting out” and reproaching?
    Woe unto you that are rich, for you have received your consolation. Woe unto you that are full, for you shall hunger.
    I guess my favorite liberal never attended a $50,000 per plate fund raiser. How did he know….? I’m guessing that my liberal friend actually tried getting the attention of the rich so they would show some compassion for the not so fortunate. He goes on to offer the rich some hope:
    …and if you do good to them which do good to you, what thank have you for sinners …, and if you lend to them of whom you hope to receive, what thanks have you for sinners…also lend to sinners to receive as much again. Love your enemies, and do good; lend hoping for nothing in return, and your reward shall be great. You shall be the children of the Highest. Be you therefore merciful as your Father also is merciful.
    It sounds like my friend says it’s O.K. to share the wealth, or as the current lexicon has it: redistribute it. Why, then, do I hear conservative Christians/Republicans screaming bloody murder about redistribution? Who cares what you call it if you’re helping the poor, right? I wonder what my friend would say about the term entitlements.
    Judge not, and you shall not be judged. Condemn not and you shall not be condemned. Forgive and you shall be forgiven.
    Give, and it shall be given unto you in good measure.
    Wow. This sounds like investing in your fellow man results in great rewards. I wonder why more rich people who go to church don’t get this. I may be stretching the point, but don’t our social services attempt to share wealth on a large scale? Isn’t it better for everyone to pay a little so that the burden of expense is shared rather than borne by the least among us? Yes, there are those who will cheat and try to fiddle every system. That’s what the sinners do, isn’t it?
    For those who fashion themselves as the earners and the makers, but are adamant about investing in those less fortunate, my friend has more, poignant words:
    But he that has much and does nothing with it is like a man that without a foundation built a house upon the Earth, against which a stream did beat vehemently, and immediately it fell, and the ruin of that house was great.
    I hear and read much about cutting services to those who need it most. I hear and read much about how the deadbeats among us are destroying our economy and our society. But those who are yelling the loudest are those who have the most to give to responsible service systems. They are the ones who cry for tax breaks while hiding their money in foreign countries thus denying it to the people they so readily exploit.
    The politics of greed without conscience, wealth without substance and cravenness without truth belong, primarily, to the political party wearing its religion on its sleeve. It is the religion of my favorite liberal they tout. Somehow, I don’t think the Prince of Peace would understand the hypocrisy.

  6. Nothing in this decision makes sense to me… this is why people don’t get lawyers – SCOTUS knows what decision needed to be made (can this baker refuse a customer based on a religious belief?) yet they do some legal gymnastics to craft this worthless opinion. Was the baker right or wrong? We don’t really know that answer… thanks for nothing SCOTUS! A couple more years of this craziness is on our horizon.

  7. Vernon Turner you made me cry. I wish you would let me post this on Facebook. Nothing much regarding interpretation of the Bible reaches me anymore but your post is the most realistic example of how far we have parted from the basic and pure meaning of Christian behavior. I’m speechless and grateful for your reminders.

  8. I think everyone on this blog agrees that the conservative Republican “Christians” are hypocritical. Mahatma Gandhi said, “I like your Christ. I dislike your Christians. They are so un-Christ-like.” So this was evident generations ago. Give up trying to make sense of the nonsensical. These folks simply don’t have the capacity for critical thinking. Therefore they are incapable of seeing their hypocrisy. We just need to wait for them to die out. Young people are leaving religion in droves. Many of us oldsters left it long ago. In the mean time better to spend our energies on getting people to the polls. Volunteer to drive people there. Volunteer to be a poll watcher. Find out if a working mom needs a babysitter so she can to get to the polls before they close. (Most moms have a 2 hour window to vote during the prime dinner hour for kids.)
    Thanks, Sheila, for a concise explanation of the court’s ruling. I heard something similar yesterday on NPR, but reading your take helped further clarify the majority court’s position.

  9. Decades ago, I worked with an older man (I am now an old man) who was an Indy Race fanatic. He had no interest in baseball, football, or basketball, just the Indy 500. He told me about all the races he had attended and all the knickknacks and other memorabilia from the race he collected. He could tell you all about the cars and drivers, etc.

    When I asked if he was going to the race, he shook his head no. He said once the race moved to Sundays he could no longer attend, because of church. He also said it was wrong to run the 500 on Sunday, since it was the sabbath.

    I have met religious people who do not believe men landed on the moon, since if god had intended men to be on the moon, god would have put them there, so they believe. The whole Apollo Program was a fake in their view. When I point out to these people god did not put men on Mt Everest, but we climbed it and we used our talents to “climb” to the moon so to speak, we have also plunged into the deepest depths of ocean, where god did not put men.

    It makes no difference what logic you try, they sincerely believe men did not land on the moon. These beliefs do not harm others in sense, except their children who may remain closed minded once they grow up.

    It does make a difference when these bible thumpers try to bring their prejudice , discrimination, young earth or creation science crap out and expect us to treat it with respect.

  10. Faith is comprised of assumptions that we each make about important things that we cannot know. I personally never argue with anyone’s because my faith is like their’s but my assumptions may well be different. Why wouldn’t they be? We each are just building a place that we are comfortable in. Faith is like sex in that it’s strictly personal.

    These debates though aren’t about faith or caking baking or sex. They are between authoritarians and liberals. Authoritarians believe that they are entitled to power, Liberals believe that nobody is.

  11. Thomas Paine to the rescue once again: “To argue with a man who has renounced the use and authority of reason, and whose philosophy consists in holding humanity in contempt, is like administering medicine to the dead, or endeavoring to convert an atheist by scripture.”

    ― Thomas Paine,
    So there will be no reasoning with the bible thumping -Right Wing Reactionaries that make up the Agent Orange Republicon Party.

  12. I have long held that we are not practicing the religion of Jesus but one about him, one concocted by medieval monks and mindlessly practiced since with some doctrinal (and political – see Henry VIII and current evangelical) deviation from the views, practices and behaviours of such monks.

    The high court with its recent ruling took a procedural poke at the inferior courts and commissions but decided nothing of substance. We need to have a case come up from below which is factually “on all fours” so that we can finally have a substantive finding on this festering issue of the commercial interaction between straight, religionist and gay communities. I know of no such case on the horizon, so expect further delay.

  13. I hate to use the term because it’s gotten so associated with the legal team and other supporters of the other Donald J., but I think in terms of enduring substance SCOTUS has produced a big judicial Nothingburger.

  14. “People are born gay”…not necessarily.

    The question should never even be posed as a binary choice. People end up gay for a variety of reasons. Most are born gay, but some choose to go gay; some are forced to participate as if they are gay; some are somewhat born gay, as in modified birth attributes caused by exposure to farm chemicals like Atrazine, and some can’t make up their mind about just what they are born to be sexually and manage the problem by switching back and forth. If (all) gay people are born gay, then the switch-hitter must suffer multiple births…maybe there are some cat genes at work, you know, nine lives.

  15. So, Larry — what’s your point?
    To quote Marie Antoinette, “Let them eat cake!”

  16. Cleverly, this turns one of we progressives key weapons against injustice on us. That of Due Process being a right of all citizens and non-citizens within the jurisdictions within the United States.

  17. While there’s no question of the correctness of Sheila’s interpretation of this ruling, its probable effect will be to allow LGBT bigots to declare loudly and often that the Supreme Court rued in their favor. While a blatant lie, that no longer seems to slow bigots or politicians or bigoted politicians down.

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