Current Legal Issues

Masterpiece Cakeshop Decision

As you might have heard the Supreme Court has decided the Masterpiece Cakeshop case. I had expected the court to declare the law unconstitutional for being vague or overly broad.  But that didn’t happen. The court found that the law is perfectly fine, it’s just that it was applied unevenly and therefor violated the Bakers First Amendment rights.  The law as applied was “not neutral toward religion”. So, it was unconstitutionally applied, but not unconstitutional.  The court found that the Colorado Civil Rights Division had permitted a baker to refuse to create a cake that demeaned gay marriages. When I read the oral argument transcript I don’t recall reading that the State Civil Rights Commission had expressed an antagonism against Phillips’ faith, but the Syllabus reads [the Commission] disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.

The majority opinion signaled to advocates who might want to bring a case the court might consider. For example: 1. The baker refused to sell any cake to gays; 2. The baker refuses to attend the wedding; 3. Refusal to put “religious words” on the cake; 3. Refusal to sell to gays a cake in the store that has religious words on it. In effect this decision is limited to the facts of this case.  The Court held: 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.

Prior to including gays as a protected class for centuries the only classes were race, color, or being a slave, and because the power of the Federal Government is limited, it can only prescribe actions that involve interstate commerce.  Which power did not exist before the decision of the High Court was rendered in Wickard v. Filburn, and decided in 1942. Colorado however has the power to regulate discrimination occurring within its borders, but has limited its application to places of public accommodation. It was not until 2007 that Colorado included gays as a protected class. 

More importantly than individual religious expression, or governmental intrusion into the freedom to express ones religion, in my opinion, the greater failure is that of organized religions that have allowed society’s gradual change in normative values to occur without significate objection. This unfortunate fact is stated in the High Court’s rationalization for laws that guarantee protection to gays. Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.