In one of the most anticipated Supreme Court rulings of the year, involving the question of whether an anti-gay baker has to bake a cake for a gay wedding, the court Monday decided to punt. While you’ll probably see a lot of headlines proclaiming “Christian Baker Wins at Supreme Court!,” in fact the justices decided not to decide the underlying question of whether someone like that baker can discriminate against certain customers.
That question is a vital one, and it’s part of an incredibly ambitious campaign waged by the religious right and the Republican Party to essentially turn conservative Christians into a class with special rights. They haven’t won yet, but they could be on their way.
This case, called Masterpiece Cakeshop v. Colorado Civil Rights Commission, involved a Colorado law that bars discrimination against gay people (among others), and a Christian baker who refused to bake a wedding cake for a gay couple. The baker’s claim was essentially that the law had to yield to his interpretation of his religion; while the New Testament is notoriously silent on the production of wedding cakes, he felt it would compromise his beliefs to have to perform the service for which he was in business, if it meant performing that service for a same-sex wedding. The couple was not asking that the cake be decorated with any pro-gay messages; it was the fact that it was for a same-sex wedding that the baker objected to.
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The outcome that the plaintiff, religious right organizations, the Trump administration, and virtually the entire Republican Party wanted was one in which the Supreme Court would declare that religious people - particularly Christians, since they’re the ones who usually make these kinds of claims - can pretty much pick and choose which laws they want to obey, so long as they can cite a religious basis for their objection. That was not what the court gave them.
The seven justices who agreed on this ruling (all the conservatives, plus Stephen Breyer and Elena Kagan) managed to avoid the underlying issue by pointing to comments made by members of the Colorado Civil Rights Commission, which adjudicates these kinds of claims in the state. Even though there were some complex First Amendment questions at issue - is baking and decorating a cake simply a commercial transaction or is it an artistic expression? - they set those questions aside and ruled that statements made by commissioners in hearings demonstrated a hostility to the baker’s religion, and if their decision was based on that hostility, it’s unconstitutional.
That leaves all the fundamental questions unanswered. As Ian Millhiser put it, “The opinion reads as if the central matter at issue was not so much about resolving a conflict between religious bakers and same-sex couples as it was about an urgent need to police the tone of civil rights commissioners.” Because the court didn’t rule on the fundamental issues, we can be sure that more lawsuits will be filed in which Christian business owners want an exemption from anti-discrimination laws. And they have reason to believe they might get it.
One of the religious right’s goals in recent years has been to extend the boundaries of religious freedom beyond the practice of religion into the secular world. So for instance, most of us would agree that a rabbi shouldn’t be forced to conduct a marriage ceremony for a pair of Episcopalians, but if a Jewish person is running a bakery, he can’t post a sign in the window saying, “We don’t serve Episcopalians.” The former is a religious practice, while the latter is about the conduct of secular business.
But the religious right has argued, with some success, that religious people should be able to exempt themselves from laws they find disagreeable, even if all they’re doing is selling glitter and crepe paper. In the Hobby Lobby case, decided in 2014, the Supreme Court ruled that a private corporation should be able to exempt itself from the law - in that case a requirement of the Affordable Care Act that insurance plans include coverage for contraception - because they claimed they had a religious objection to it.
The critical context here is that the religious right is seeking this kind of special status for themselves precisely because their views are in decline. Anti-gay sentiment is becoming less and less acceptable. The patriarchal ideology at the heart of conservative Christianity is being increasingly rejected by society. The proportion of nonbelievers in America is growing rapidly.
This is why they’ve been so incredibly enthusiastic about Donald Trump, sometimes even claiming that God engineered Trump’s victory as a blessing to American Christians. The rest of us might look at the loyalty that white evangelicals show Trump and see hypocrisy, but when you do so you’re missing the point. Why doesn’t it matter that Trump is not religious himself or that he indulges at least three or four of the seven deadly sins every day? It’s because Trump, unlike others who are much more pious, is the most nakedly tribal politician we’ve ever seen. He doesn’t pay lip service to caring about people of all faiths. He doesn’t make appeals to bedrock Christian principles. He simply says to the religious right that he’ll fight for their team, against all the other teams.
That’s why it was so important that Trump said over and over that once he was president, people would be allowed to say “Merry Christmas” again. Never mind that nobody stopped saying “Merry Christmas” in the first place. Trump was speaking to a sense of lost privilege, of the kind that always drives reactionary movements. Many religious conservatives really are offended when they walk into a department store and see a “Happy Holidays” sign, because it means their cultural hegemony has been eroded. It’s no longer taken for granted that their culture is the culture, the one everyone is required to participate in whether they like it or not. Now we make at least some attempt to accommodate everyone in an increasingly diverse society. To some people that felt like a loss, because it was.
So when Trump came along, criticizing “political correctness” (also known as “not acting like a jerk towards other people”) and saying that we’re going to say “Merry Christmas” again, he was telling them that he was going to put their religion, their preferences, and their privileges back on top.
The real reason the Masterpiece Cakeshop case ended without resolving the underlying issues was that Anthony Kennedy, who wrote the majority opinion, is unwilling to restrict the rights of gay people in order to enhance the privileges of conservative Christians. But they’ve got four justices who are. All they need is one more.