Masterpiece Cakeshop case presents an extremely interesting permutation in the annals of civil rights cases that have been presented to the highest court in the land. However, the case has been marketed by leftists as the latest iteration of the law being used as a weapon to attack the civil rights of LGBT individuals. This claim could not be more off base, and more dangerous.
In the past, the Roberts Court effectively defended civil rights and has recognized the fundamental rights of all citizens while carefully considering the intervention of the federal government. However, the left has blatantly mischaracterize the philosophy of judicial constiutionalists like Justices Roberts, Thomas, Alito, Gorsuch, and occasionally Kennedy as adversarial towards the rights of the marginalized and disenfranchised. Critics cite the dissent in Obergefell v. Hodges, as well as the majority opinions of Shelby County v. Holder and Burwell v. Hobby Lobby as evidence of the court legislating morality, approving of racist practices, and allowing corporations skirt around the law due to the religious objections of the owners. Not surprisingly, most of these critics have not carefully read any of these opinions. None the more conservative justices on the court have a legal bias against homosexuals, none intend to moralize their feelings and transform them into law. Instead, they adhere to strict federalism, and do not want to increase the strength of an already far-too-powerful federal government. In Obergefell, Chief Justice Roberts spells out his philosophy, saying that while equal marriage policies have “undeniable appeal”, “this Court is not a legislature…whether same sex marriage is a good idea should be of no concern to us.”
Roberts’ remarks show that the left’s narratives about judicial minimalists – that they are out-of-touch men with antiquated moral beliefs – is completely false. Chief Justice Roberts did not reject the movement of marriage rights for gays and lesbians based on moral disdain. The grounds on which he opposed this decision, and the same grounds with which he argued for Shelby County and Burwell simply come down to one simple fact: the judiciary is not a legislative body. They cannot enforce, nor create policy, nor should they. Yet, the more expansive jurisprudence that Justices Sotomayor and Ginsburg subscribe to grants the federal government rights that are not enshrined in the constitution to solve issues that they are feel are morally compelling. So, let us again ask, who is really moralizing their opinions into legal dogma?
In the latest controversial case, the Roberts Court will consider the same fundamental question as in Obergefell, Shelby County, and Burwell: What role does the federal government have legal sanction to play in the defense of rights, and what constitutes a violation of civil rights? In Masterpiece Cakeshop, the government neither has jurisdiction to intervene, nor are the rights of any customers violated by the accused, Mr. Jack Phillips.
Mr. Phillips has an exemplary record as a business owner, and further has a record of serving LGBT customers without issue. This is not a case of discrimination on the basis of identity which would violate the Fourteenth Amendment equal protection clause. Rather, it is a case with much ado about nothing. Mr. Phillips is well within his First Amendment rights to deny service to anyone who requests a message on their cake that he does not agree with. When one goes to a wedding, do they comment on the taste of the wedding cake, or its elegant appearance? Why does Mr. Phillips take such diligent steps to meet with clients in the planning of wedding cakes? The answer to these questions provides a simple conclusion: wedding cakes transcend a status of a food product because they are an expression of art and love. This type of symbolic speech can have no restriction of course, but also there is no legally tenable path to a coercion of speech. Not that a rainbow flag is in any way analogous with a Nazi Flag or a Confederate flag, but if a reasonable person disagrees with those messages, why should they be forced by law to accept business to express messages they disagree with? The beauty of the marketplace of ideas that American society provides citizens with is an unfettered right to choose and to associate. An opinion is exactly that—an opinion. There cannot be a legal mandate to accept an opinion or even respect an opinion. Any laws requiring such would take our government down the slippery slope of tolitarianism.
Mr. Phillips has already lost a third of his business as a result of this case. This too, is how the public can express disagreement with his ideas—through legal channels and simply stigmatizing or disapproving by no longer seeking business. The damage to Phillips’ credibility by most Americans is more than enough punitive damage. Deciding against Masterpiece Cakeshop would set a dangerous legal precedent and would allow the left another opportunity to politicize the law. The highest court in our land was designed to transcend politics—this is why appointments are lifelong. When Democrat Ted Kennedy led the charge against Robert Bork during the Reagan administration, one of the country’s most important institutions was poisoned by partisanship. Bork was fully qualified for a position on the court and fit of character and simply received rejection due to a political gripe with his jurisprudence. Masterpiece Cakeshop is an opportunity for all Americans, not just the right, to reject the demurring of one of our most sacred institutions. The left must let originalists and textualists on the Roberts Court interpret the Constitution as they see fit, and should read their opinions before castigating them to “the wrong side of history.”