Commentary

SCOTUS Justice Kennedy Insists Tolerance Be a ‘Two-Way Street’ in Religious Freedom Case

John Stonestreet
By John Stonestreet | December 7, 2017 | 11:22 AM EST

Jack Phillips of Masterpiece Cakeshop (Screenshot)

I was honored yesterday to rally in support of Jack Phillips on the steps outside the Supreme Court. Now I’d like to tell you what went on inside.

Yesterday, the Supreme Court heard oral arguments in Masterpiece Cake Shop v. Colorado Civil Rights Commission. Eric Metaxas and I have given you the details before, of Colorado master cake designer Jack Phillips who declined to design a wedding cake for a same-sex couple.

As David Brooks wrote in Monday’s New York Times, “Phillips is not trying to restrict gay marriage or gay rights; he’s simply asking not to be forced to take part.”

Neither the couple or the state of Colorado saw it that way. Phillips was found to have violated the state’s anti-discrimination law, and forced to choose between his convictions and losing forty percent of his business. Phillips appealed to the Supreme Court.

While Phillips’s actions were grounded in his religious beliefs, the legal argument was primarily about whether Colorado had violated his right to free speech.  Unlike those commentators who disparaged the idea that creating custom cakes constitutes a form of speech, yesterday the Court took the question seriously.

Phillips’ lawyer, Kristen Waggoner of the Alliance Defending Freedom, argued that “the first amendment protects bakers such as Mr. Phillips against being forced to express any belief, and that as a custom-cake maker, he sketches, sculpts and hand-paints—in other words, he’s an artist.”

Waggoner had barely gotten started when the questions began.

Responding to Justice Ruth Bader Ginsburg, she reiterated that neither she nor her client were challenging his obligation to sell his ordinary wares to everyone. In fact, he offered to sell the couple any already-made cake in his store.

Custom cakes, Waggoner told the Court, were a different matter. The use of writing and symbols convey a message in a way that a cake off the shelf does not.

Inevitably the comparison to race came up. The best answer was given by U. S. Solicitor General Noel Francisco. Francisco, in response to several justices, argued that discrimination on the basis of race, such as refusing to serve an interracial couple, was different than refusing to participate in a ceremony.

 

He also argued that upholding Phillips’ free speech rights would not damage civil rights protection because it would only apply to “a small group of individuals” in “narrow circumstances.” However, Justice Breyer disagreed.

But the roughest treatment was reserved for Colorado’s Solicitor General Fred Yarger because of Colorado’s treatment of Phillips throughout the whole ordeal. Justice Kennedy—likely the swing vote in this case—told him that tolerance must go both ways, adding that, “It seems to me the state has been neither tolerant nor respectful” of Jack Phillips views.

He cited a comment by a member of the Civil Rights Commission, who called Phillips’ religious beliefs “one of the most despicable pieces of rhetoric.” He then asked Yarger to disavow the comment. After Yarger lamely replied that he wouldn’t counsel a client to say such a thing, Kennedy pressed him, and Yarger disavowed.

It’s never a good thing when a judge asks you to disavow your client’s statement.

So where are we? Justice Kennedy definitely seems troubled by the way Phillips was treated, and it’s encouraging that he insisted tolerance is a “two-way street.”

Heartening as well was Justice Breyer’s asking Yarger if some kind of compromise might be possible. Whatever else Breyer is thinking, he seems to be concerned that Colorado didn’t make sufficient allowance for people with dissenting views.

I can’t tell you whether Phillips will prevail, but there’s reason to be encouraged. It’s also possible that Kennedy could side with Phillips, but in a narrow opinion that would open the floodgate for future cases. Even then, that’s better, far better than a Phillips loss.

So let’s continue to pray earnestly that Phillips, and freedom, prevails.

John Stonestreet is President of The Chuck Colson Center for Christian Worldview and BreakPoint co-host.

Editor's Note: This piece was originally published by BreakPoint.


Please support CNSNews today! [a 501(c)(3) non-profit production of the Media Research Center]

DONATE

Or, book travel through MRC’s Travel Discounts Program! MRC receives a rebate for each booking when you use our special codes.

BOOK NOW