I’m on the road today, departing shortly on a flight to Munich, and then connecting on to Bulgaria tomorrow (long story—I’ll try to post updates when I get internet access), but I’m keeping an eye out for Supreme Court news, especially the hoped-for retirement announcement of Justice Kennedy.
One announcement from the Court today is important: they are taking up the appeal of Masterpiece Cakeshop in Lakewood, Colorado, which had declined to bake a cake for a same-sex couple that had married out of state when gay marriages was still not recognized in Colorado back in 2013. I wrote about the tangled issues of civil rights law involved in this case for Forbes at the time, and it is worth revisiting now:
Beyond the facts of this particular legal case, or alternate market-oriented remedies such as an organized boycott of Masterpiece Bakeshop or rival gay-friendly bakeries who see a business opportunity, there is the fundamental clash of basic American liberties that we have papered over for a long time. On the one hand, the First Amendment guarantees religious liberty and freedom of association, the latter implying a right not to associate with someone if you don’t wish to. Likewise, the idea of private property implies among its traits the right to exclude people or uses from your property. On the other hand, we have the 14th Amendment’s mandate for the “equal protection of the law,” along with the general principles of American politics about equality and equal individual rights.
The legacy of slavery and race-based discrimination has led us to make compromises that limit the scope of some fundamental freedoms. The Supreme Court ruled way back during Reconstruction that property ceases to be wholly private when it is used in certain kinds of commerce, especially public conveyances such as transportation, hotels, and restaurants—though restaurants are still allowed to discriminate against the shirtless, the shoeless, and the smelly, showing that we haven’t lost our ability to make any rational discriminations about “discrimination.” . .
Today “discrimination” has been steadily expanded by every other claimant or group with a grievance. Every possible social asymmetry is claimed to be a fundamental “civil rights” issue, requiring similar extensions of government coercion. A few simple hypotheticals show the irresolvable legal and political thicket we are creating. What if Mr. Phillips agreed to bake the cake for the gay couple, but insisted on including a statement, made out in frosting, about his religious objection to homosexuality? Wouldn’t prohibiting him from doing so infringe his right to free expression? Would a Jewish or African-American bake shop be required to supply a cake to a White supremacist group?
Jack Phillips has responded to the state sanctions against his religious belief by deciding to discontinue making wedding cakes for anycustomer. Is this the kind of outcome Rosa Parks and Martin Luther King Jr. had in mind?
Read the whole thing here.