What comes next for religious liberty, after the Masterpiece Cakeshop decision?
(COMMENTARY) The Pulitzer Prize winning "Angels in America" has long been a touchstone for gay spirituality, so it wasn't surprising that actor Andrew Garfield celebrated winning a Tony Award in the play's revival with remarks mixing faith and politics.
It's crucial, he said, to celebrate the play's "spirit that says 'no' to oppression. It is a spirit that says 'no' to bigotry. … It is a spirit that says we are all made perfectly."
Garfield concluded: "We are all sacred. … So let's just bake a cake for everyone who wants a cake to be baked!"
The baker behind the U.S. Supreme Court's recent Masterpiece Cakeshop decision has heard pronouncements of this kind many times since that fateful day in 2012 when he declined to create one of his handcrafted, personalized cakes to celebrate the same-sex marriage of Charlie Craig and David Mullins.
"The biggest myth I hear all the time, pretty much, is that I turned away a gay couple. But the truth is, I never turn away any customers. I do, sometimes, have to decline to create cakes that violate my faith, and that was the case here," said Phillips, in a Lutheran Public Radio interview soon after the June 4 decision.
"The two gentlemen that sued me were welcome in my shop that day. I told them, I'll sell you cookies, brownies, birthday cakes, anything else, custom cakes – it's just that I can't create this one, because this was a cake that goes against the core of my faith."
While this was a 7-2 ruling, Justice Anthony Kennedy's majority opinion (.pdf) focused on evidence that the Colorado Civil Rights Commission had demonstrated open hostility to Phillips and his Christian faith. Thus, he avoided a broader ruling on First Amendment protections of free speech and the "free exercise" of religion.
Naturally, church-state activists have argued about the significance of this much-anticipated decision. At least four camps have emerged so far.
* Some insiders – on right and left – have mildly praised the decision, seeing it as a dodged bullet, since Kennedy failed to clearly affirm either side. Thus, any kind of win was a win, or at least not a loss. Everyone knows that this culture war will continue.
* Many conservative religious-liberty activists acknowledged that this was a narrow decision, but they noted that there are pending cases in which Kennedy's criticism of anti-religious bias will be relevant.
"The religious liberty litigators I talk to tend to be more optimistic about its implications," wrote religious liberty specialist David French, of National Review. "They know the factual records of their own cases, and they know that the records are often littered with examples of state bias and double standards."
For example, he noted that Becket Fund for Religious Liberty attorneys quickly filed a new legal brief – citing the Masterpiece Cakeshop ruling – in a Wayne State University case focusing on whether InterVarsity Christian Fellowship can require its chapter leaders to affirm the ministry's doctrinal covenant.
* Some appreciated that, while the court avoided crucial religious liberty issues, it signaled that these issues must be settled.
Kennedy noted that the "Constitution can, and in some instances must, protect" gay couples in the "exercise of their civil rights." However, he added that religious "objections to gay marriage are protected views and in some instances protected forms of expression."
What's the sum total of these "some" references? He added: "The outcome of cases like this in other circumstances must await further elaboration in the courts."
* Some insiders – once again, on left and right – claimed that Kennedy implied that government officials who want to see sexual liberty trump religious liberty simply need to clean up their acts. In other words: Eliminate the nasty, anti-faith rhetoric next time and LGBTQ advocates will win at the high court.
Meanwhile, Phillips said he is looking forward to creating more wedding cakes, now that he is free to do so while following his Christian convictions.
"It was worth the fight," he said. "The state should not be allowed to force creative professionals, like myself, to create artwork – in my case, cakes – to convey messages that go against their faith. The First Amendment would clearly protect that. … It was worth it because this clearly protects all creative professionals."