The Editors: The Supreme Court punted on the wedding cake case—and gave the country an opportunity

Baker Jack Phillips, owner of Masterpiece Cakeshop, pictured right, June 4 (AP Photo/David Zalubowski)Baker Jack Phillips, owner of Masterpiece Cakeshop, pictured right, June 4 (AP Photo/David Zalubowski)

Many commentators reacted to the Supreme Court’s recent decision in the Colorado “gay wedding cake” case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, by saying the justices had “punted” in deciding the case on narrow grounds. But the court, by avoiding the choice to prioritize religious freedom over nondiscrimination or vice versa, has been both faithful to its own best traditions and prudent in limiting its intervention in the ongoing cultural adjustment to same-sex marriage. If this is punting, then the country needs more of it, not less.

This decision offers Catholics—and indeed all Americans—a welcome opportunity to step away from the trenches of the culture war.

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Beyond the Supreme Court’s caution in refraining from unnecessarily adjudicating constitutional issues, the basis on which it did resolve this case is heartening. Writing for the 7-to-2 majority, Justice Anthony Kennedy quoted at length a commissioner who compared the baker’s refusal with the use of religion to justify the most extreme forms of discrimination, including slavery and the Holocaust. Such hostility toward religious belief, the court ruled, tainted the proceedings sufficiently to require the commission’s decision against the baker to be invalidated. The court thus affirmed Colorado’s right to protect its citizens from discrimination on the basis of sexual orientation, but it also required that Colorado undertake such protection without the hostile assumption that traditional religious beliefs about marriage are necessarily discriminatory. Catholics can and should give robust agreement to both those positions.

After the 2015 decision in Obergefell v. Hodges, in which the court found a constitutional right to same-sex marriage, the editors suggested that gearing up for a permanent culture war would work against the church’s mission to evangelize. After Obergefell, we argued, there was “an opportunity for Catholics of every political stripe to assume an even more robust public presence, but from a different starting point: that of human encounter rather than of tactical confrontation.”

This most recent decision offers Catholics—and indeed all Americans—a welcome opportunity to step away from the trenches of the culture war and look for more fruitful and hopeful opportunities to encounter each other anew. Perhaps what the country needs is not a definitive legal ruling, but common understanding of the real fears felt by people on all sides of these cases. In more than half the states, no law protects against discrimination on the basis of sexual orientation in employment, housing and public accommodation. At the same time, as the Colorado case demonstrates, some advocates for nondiscrimination bear an animus against religious belief, as if it must be defeated in order for justice to be achieved.

It is unlikely that the deep questions of justice and toleration—both of religious belief and of differences in sexual orientation—turn on what kind of cakes someone is allowed to purchase or can be compelled to bake. But they may well turn on whether we pursue their answers through legal confrontation or human encounter. The court has given the country a chance to consider these questions together, rather than against each other. We ought to take advantage of the opportunity.

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E.Patrick Mosman
5 months 1 week ago

Could the politically appointed, not elected, members of the Colorado Civil Rights Commission or any governmental agency force a Jewish or any baker to provide a birthday cake as a remembrance of Adolph Hitler's birthday with a Swastika and a SS insignia? This is not a religious question but one of the limits, if any, of semi-government agencies ability to force business people to act against their religious or moral principles. The SCOTUS decision doe not resolve this issue but only prolongs the debate and even predicts further court cases and questions whether a different decision will be reached.

Louis Candell
5 months 1 week ago

If such a scenario happened, the baker should simply state that he/she is much too busy to accommodate the order; thereby eliminating a lot of needless acrimony. You are correct as far as SCOTUS kicking the can down the road. I contend that in the Masterpiece Cakeshop case, the baker, Mr. Phillips, needlessly made it known that he would not bake the requested cake because it would violate his personal religious beliefs. He should have kept that to himself and stated that he already had too many orders for that time period. But no, he had to mount his self-righteous high horse and express his opposition to their homosexual marriage. Religious zealotry can be a dangerous trait.

arthur mccaffrey
5 months 1 week ago

so why didn't you keep your mouth shut and come down off your self-righteous high horse, and just say that you were too busy to express an opinion on the matter? Anti-religious zealotry can be a dangerous trait.

Louis Candell
5 months 1 week ago

I hope to educate misguided people like yourself.

Stuart Meisenzahl
5 months 1 week ago

Louis
Left out of this rather testy comment section is that the guy was not just asked to bake a cake.......I believe he was asked "to both design and bake a cake." Designing usually involves the application of one's distinct talents in service of a goal.
Do you suppose that an artist's refusal to paint a portrait would also involve a claim of discrimination? How about a musician refusing to compose a song? It is perfectly clear that the couple involved in the cake case could have bought any "off the shelf item" they wished.
While the Court certainly does not appeared to have directly addressed this point ( it did not have to inorder to dispose of the case), the day will certainly come when it is squarely presented with the issue of public accommodations applying to artistic occupations. Since the artistic occupations involve a singular creative product and by definition not one available to everyone, this is going to be a difficult issue to fit within the parameters of the laws prohibiting discrimination..
in the instant case the bakers error was expressing motive and the commissions opinion/discussion involved the exact same mistake!!

Carlos Orozco
5 months 1 week ago

No need to LIE in a free country.

Carlos Orozco
5 months 1 week ago

No need to LIE in a free country.

Patty Bennett
5 months 1 week ago

You're missing a major point. Honoring the integrity of your religious beliefs is not getting on a "self-righteous high horse". Claiming to be "too busy" might avoid/escape the conflict momentarily by ducking for cover, but what happens the next time? And don't fool yourself; there WILL certainly be a next time! This is how the Left advances its pet causes: Find a Christian who disagrees with you, pass up multiple opportunities to find ANY of the many other businesses who would be willing to bake your cake, play the victim, (of course, alert the media!) cry "discrimination", and sue him to oblivion, all while having people sympathetic to your cause harass and threaten the Christian.
Yes, there are people afflicted with same-sex attraction who don't use these nasty tactics, but their "activists" will not leave you alone if you fail to agree with their lifestyle.

Jessica Pegis
5 months 1 week ago

The minority opinion, Ginsberg, joined by Sotomayor, has an excellent analysis of why such a request is not equivalent to the request for a cake.

Will Niermeyer
5 months 1 week ago

Hopefully this will move America to act in a positive way on separate but equal places of business, etc so to allow white America and black America due separation with equality and justice for all concerned.

Robin Smith
5 months 1 week ago

Do you know why we have anti discrimination laws? Because separate, but equal didn't work before. It didn't work for Jews who were kept out of clubs. It didn't work for POC barred from restrooms. It didn't work for women to be a cop. It didn't work for anyone but white men. White, christian men. Seriously, read some political & American social history. Then pray for guidance.

Andrew Wolfe
5 months 1 week ago

We didn't start this war. With every further accommodation to alternative/unnatural sexual lifestyles, those endorsing those lifestyles have become more and more aggressive not simply in gaining legal liberties to practice them, but in harassing and persecuting those who don't affim them. If I were to read anything about homosexuality from the Fathers, the Doctors, or even the extremely charitably phrased CCC, I could lose my job. The gay-rights agenda has become a fascist thought police where even unstated disapproval is considered a violent hate crime. Pretending there is no war going on is not going to end the anti-Christian aggression and persecution by gay rights advocates.

Louis Candell
5 months 1 week ago

It shouldn’t be a war, Sir. Why should you care whether or not two homosexuals get married? How does that affect you and yours? Granted, some gay-rights groups are over the top as are some religious zealots. Perhaps if those opposed to same sex relationships would just ignore homosexuals, we could get passed this stupid conflict. I’m not particularly fond of homosexual relationships but I also don’t care that they exist. Why do you? AS Pope Francis said, “Who am I to judge?"

arthur mccaffrey
5 months 1 week ago

...and as Pope John XXIII said--"hate the sin but love the sinner." There are people who have well thought out, rational positions on the rightness or wrongness of homosexuality. Perhaps they think it disturbs the natural order, or that homosexuals are not good role models for children. You may not care but other people do, so why don't we get past this stupid conflict and recognise that your presumptions are simply that--yours. Ignoring something you do not believe in is intellectually dishonest.

Louis Candell
5 months 1 week ago

Discriminating against people because of their genetic predispositions is not only stupid but immoral. If a married same-sex couple does not interfere with your life or beliefs, why do you care so much that you wish to have them discriminated against? Have you nothing better to occupy your time and energy? Who appointed you to be the world’s conscience?

Louis Candell
5 months 1 week ago

You must find it terrifically taxing not to ignore all the things to which you object. I know I would. Friend, there are many things in life that we object to but we can’t abolish them all. Homosexual relationships have been with us since the dawn of time. If you think that expressing your objection to them and discriminating against homosexuals will make them disappear, well, have at it.

Patty Bennett
5 months 1 week ago

"How does that affect you and yours?" Are you kidding? Any failure to approve of homosexual relationships is automatically viewed by the "politically correct" as "hate". It can lead to angry threats, cost you your job, or bankrupt you. It certainly affected THIS Christian baker.

john collins
5 months 1 week ago

Time for encountering indeed. The Colorado Commission says ‘no discrimination on the basis of sexual orientation.’ The Catholic Church says ‘no unjust discrimination on the basis of sexual orientation.’ When the Jesuit editors of America encounter the distinction between what the state commission says and what the universal church says, what do they say?

Patty Bennett
5 months 1 week ago

SOME discrimination is not only NOT unjust, it's absolutely necessary! We discriminate all the time in hiring. There are those who are qualified (mentally, physically, morally, intellectually) for certain occupations, and those who are not.
It's wise to "discriminate" against a blind surgeon. We discriminate in choosing our spouses. It makes sense to "discriminate" against a philanderer. When we deliberately ignore important differences due to a tyrannical political correctness, society self-destructs.

Floyd Grabiel
5 months 1 week ago

The Court did what it has often done, i.e., decide a case on the narrowest possible grounds. More of these cases are on the docket, and soon the Court will need to make a more definitive ruling on the issue. What the Court should do is quite simple: If you are in business to sell to the public, then sell to all the public. Don't discriminate unlawfully. That means that if a black person wants to buy something and you are bigoted, you don't get to refuse. If a gay person wants to buy something, you don't get to hide behind your discomfort for any reason, and you must sell. No one is mandating that the baker get married to another man. But, if he's going to sell cakes, he must sell to anyone who legally comes into his shop.

Henry George
5 months 1 week ago

We are told again and again in America, literally the nation and the magazine,
that a person must follow their conscience.

Mr. Phillips says that creating a wedding cake is a work of art for him
and his conscience will not allow him to make if for Same Gender Couples.
[ He also does not make Halloween Cakes, Vulgarity laced Cakes, etc. ]

Why can't his conscience be respected ?

Is there anyone out there that would seek to force a Jewish Baker
to make a Wedding Cake for a Neo-Nazi Wedding ?

An African American Baker to make a Wedding Cake for a
KKK wedding ?

Or has Mr. Phillips gone beyond "The Pale" and pointed out that as
far as he, a Christian, understands, the Bible does not support
Same Gender Weddings...

What I find most odd is that the couple seeking the cake - went to court
- in essence - to force Mr. Phillips to make a Wedding Cake - if not for them,
as their wedding date had passed, for others who seek Same Gender Marriages
- is it that their embarassment of being turned down
is of greater moral suffering than forcing Mr. Phillips
to create Wedding Cakes for marriages he does not believe in ?
[ Under Colorado law Mr. Phillips either had to agree to create cakes
for Same Gender Marriage or stop selling Wedding Cakes.
As such the store has lost 40 % of its income and he had to lay off several workers. ]
Is that really American Justice in action ?

Why would you ever, if you have the choice, give your money to someone
who thinks that what you are doing is morally abhorrent ?

Live and Let Live - Tolerance is a two way street -
If no one will make you a wedding cake,
contact me, I will bake you a cake
for the sheer sake of civil tranquility.

john collins
5 months 1 week ago

Floyd,
Your analogy is flawed. ‘Black’ is an ontic feature of a person. ‘Gay’ is a psychosexual feature of a person.

Jeanne Linconnue
5 months 1 week ago

Most scientists believe that homosexuality is an inborn trait, just as skin color is. The evidence for this is very strong and it makes sense. Why would someone "choose" homosexuality in a society that has so many willing to persecute them for it? It's a whole lot easier on people to be "straight".

rose-ellen caminer
5 months 1 week ago

Whether it is innate or not is really irrelevant; it's a core identity; like ones nationality[ ethnicity] , race , religion, gender. All of which one is prohibited from discriminating against under our laws. Such identified groups have civil rights protections. Including the right to equal treatment i.e., they cannot be treated as second class citizens as discriminating against them on the bases of their core identities, would make them.

john collins
5 months 1 week ago

Jeanne,
The profession of psychology is not of one mind about homosexuality. Some reputable professionals have given/yet give their services to individuals who seek them out because they are conflicted within themselves about gay.—This despite official positions from various organizations within the profession that no longer view homosexuality as an anomaly. As to your point about individuals not choosing to be gay, do not suppose that ‘choosing’ re: gay is the same as, for example, ‘choosing’ re: the president in an election. The latter choice is much less complex inasmuch as the individual automatically knows she is the agent who is choosing whereas in the matter of gay the choosing of a gay identity is indirect—thus not so self evident. It is indirect in the sense that it (gay identity) materializes in the aftermath of (chosen) gay sexual activity. The individual chooses to enter into homosexual activity, activity which of its force compels a self-identification with it.—A bit complex this ‘choosing’, wouldn’t you say?

john collins
5 months 1 week ago

Jeanne,
If you want to read a book that develops what I wrote to you here, read Elusive Dignity: the Gay Narrative.

Phillip Stone
5 months 1 week ago

Tolerance is a modern word but the concept appears in both the Old Testament and the New - overwhelmingly disapproving or forbidding of it.
Try reading this page: https://www.openbible.info/topics/tolerance

Vincent Gaglione
5 months 1 week ago

Reading the comments here, I reiterate what I have often said before, did anyone pay attention to what was written? In this instance I thought the editors recommended a positive course of behavior and action to us as a people, that the narrow decision of the court provides.

Barbara Straub
5 months 1 week ago

I am appalled at the narrow-mindedness and bigotry evident by the ( interesting side observation- male) commentators. Speaks volumes

Louis Candell
5 months 1 week ago

I tend to view the virulent denunciation of homosexuality by males with a fair amount of suspicion. Seems entirely possible to me that a man who expresses a rabid condemnation of homosexuals and fears having them in the public forum may harbor some inner psychological conflict concerning sexual orientation. I’m fairly certain that many, if not most, straight women find lesbianism an unattractive practice but I dare say that their opposition is far less verbally expressed and does not contain nearly the level of hostility.

Pat Allan
5 months 1 week ago

It always makes me laugh when I think of the way in which marriage or convenant was expressed in the Old Testament books, and the role of the contract between a man and a woman...or a man and a man....woman and a woman.....Interaction is steeped in betrayal, intrigue, misogyny, and greed in most cases. It takes Diving Intervention to straighten things out....I think that if we leave our prejudices behind and look for guidance from God, we will find that all men and women are holy, valuable, contributing human beans....such a foolish concentration on going to war over someone's prejudices.....not worth it.
By the way, just bake the cake and say, Congratulations, if you are Christian, don't you think that is what Christ would do?

Louis Candell
5 months 1 week ago

You bet He would!

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