RICHARD MOORE

Author, journalist, conservative, libertarian(ish)

Daily Constitutional

Baker wins in Masterpiece Cakeshop case

Posted by richardmoore on June 4, 2018 at 4:35 PM

In a 7-2 ruling, the Supreme Court has sided with a Colorado baker who said that his religious beliefs prevented him for creating a wedding cake for a same-sex wedding.


It was a narrow ruling, to be sure. It did not give religious business owners the right to deny service to homosexuals, only that the baker, though he is open to the public, didn’t have to use his creative talents to create a cake for an event that runs against his religious convictions.


The baker, Jack Phillips, perhaps said it best: “It’s not about turning away these customers, it’s about doing a cake for an event — a religious sacred event — that conflicts with my conscience.”


Actually, it wasn’t even about that, though that’s the ultimate ramification of the decision. More precisely, it was about the Colorado Civil Rights Commission not giving due process consideration to the baker’s beliefs, opting for hostility instead.


“The commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” justice Anthony Kennedy wrote in the majority opinion.


Liberal justices Stephen Breyer and Elena Kagan joined the majority.


Narrow though it may be, the court nonetheless struck a blow for religious liberty; any win is big these days, and to do so with liberal support makes it all the more important.


Still, the very notion that you must surrender your religious beliefs to serve the public is abhorrent. Kennedy acknowledged that reality: "The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws.”


It would seem that those generally applicable laws would be unconstitutional. The last time we looked, the constitution still states that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, a prohibition that extends to the states. Full equality should never mean the right to oppress another's practice of speech or religion. 


A right derived from the suppression of a right is no right at all.


Still, that argument — and religious liberty — will live to fight for another day, and that makes the ruling today a good one, however parsed it may be.

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