Court spotlights ACLU fallacy in 'Masterpiece' ruling

By Emilie Kao
American Civil Liberties Union activists demonstrate in front of the Supreme Court, Monday, June 4, 2018 in Washington. The Supreme Court has ruled for a Colorado baker who wouldn't make a wedding cake for a same-sex couple in a limited decision that leaves for another day the larger issue of whether a business can invoke religious objections to refuse service to gay and lesbian people.  (AP Photo/J. Scott Applewhite)

It’s always tempting to minimize the hurt of a loss by trying to reduce its scope. That’s what the Left has been doing since the Supreme Court’s decision in Masterpiece Cakeshop. Calling a 7-2 decision win for the other side “narrow” as mainstream media outlets such as the New York Times, NBC News, CNN have done is another way of saying “we lost small.”

But the decision written by Justice Anthony Kennedy took the bite out of the Left’s key tactic by exposing a huge fallacy in the ACLU’s main argument in Masterpiece. The ACLU argued at both the Supreme Court and in the court of public opinion that believing marriage is between a man and a woman and acting accordingly can only be discrimination on the basis of identity, not mere disagreement about the meaning of marriage.

In Jack Phillips’ case, the ACLU tried to dismiss the fact that he served all customers, but only declined to create custom cakes that expressed messages for certain occasions that violated his conscience. The Left said Jack could only have declined because of animus toward gay people, ignoring the fact that Jack would not have made the cake for anyone, including the heterosexual mother of one of the men. The court’s rejection of this argument has ramifications for many of the other conflicts between religious freedom and sexual orientation.

The claim that one is being discriminated against because of who they are resonates strongly with our sense of injustice, and it should. But that’s not what this case was about. Fortunately, Justice Kennedy already saw through the ACLU’s argument last December, dismissing it as “too facile” in stating flatly: “It’s not their identity” that Phillips objected to — “it’s what they are doing.”

And on the first page of the Masterpiece decision, Kennedy restated what he had said in Obergefell v. Hodges, the 2015 decision that redefined marriage. “Religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” In essence, he rejected the ACLU’s argument that if you hold a traditional view of marriage and live according to it, you must be a bigot. And that is no small thing, because the Left’s most lethal ammunition is to shame people who believe in traditional marriage into silence and to intimidate others into complicity with their oppression.

Justice Neil Gorsuch went even a step further to expose how the real identity-based discrimination in the case was directed by the state of Colorado toward Jack Phillips. He examined how the state applied one standard toward Masterpiece Cakeshop and another toward three bakeries that declined to create custom cakes opposing same-sex marriage for a religious customer named William Jack.

The court’s decision in Masterpiece was a big win, not only for religious freedom but also for the proper enforcement of non-discrimination laws.

The Supreme Court has a long track record of correctly resolving identity-based discrimination claims under the 1964 Civil Rights Act. In Heart of Atlanta Motel, the court declared that African-Americans couldn’t be denied accommodations in interstate motels because of the color of their skin. In Hishon, the court held that female lawyers could not be kept off the partnership track in law firms because of their XX chromosomes.

And in Abercrombie & Fitch, the court decided that Muslims couldn’t be barred by from selling fashion because they dress according to their religious beliefs, including by wearing a headscarf. In each of these cases, the Supreme Court prevented discrimination against someone simply because of who they are. No one should be denied a job, a promotion, or a place to sleep because of their religion, their gender, or their race, or because they are gay.

But none of the conflicts in the courts between religious liberty and LGBT people are about identity-based discrimination, they are about disagreement on marriage.

The arguments that the ACLU advanced threatened not only religious freedom but also the credibility of non-discrimination laws. If everything is labeled discrimination, even things that are not, then when real discrimination happens people may view it with skepticism.

By recognizing the critical difference between disagreements on marriage and discrimination based on identity, the Supreme Court upheld both the freedom of Americans to hold different opinions on controversial issues like marriage and be free from discrimination on the basis of identity.

Emilie Kao is director of the DeVos Center for Religion and Civil Society at The Heritage Foundation. She wrote this for