The Courts, the Cakeshop, and Christians: The Masterpiece Cakeshop Case

Virginia Armstrong, Ph.D., National Chairman, Eagle Forum’s Court Watch
President, Blackstone Institute
June 9, 2018

(Initial copy of opinion at )

On June 4, 2018, the U. S. Supreme Court handed down its long-awaited decision in Masterpiece Cakeshop, Ltd., et al. v. Colorado Civil Rights Commission.  Significant both because of the issues it raises and the fact that the clash involved between issues is one of the first of its kind to be adjudicated by the Supremes, this case has garnered a high level of visibility.  A few preliminary comments about the Court’s ruling help us to gain a broad perspective on this decision.

The case pitted clearly stated Constitutional guarantees of freedom of expression and free exercise of religion against the judicially-created, amorphous, anti-constitutional  body of “rights” grouped under various labels, a common one being “L/G/B/T rights” [i.e., not just to legitimize the movement, but to grant its members special protections under the Constitution).  Jack Phillips, a devout Christian and expert baker refused to create a wedding cake for the homosexual marriage of  David Mullins and Charlie Craig.  This “couple” claimed that Phillips’s refusal violated their rights under Colorado state law.  The U. S. Supreme Court heard the case on the grounds that Phillips’ rights under the U.S. Constitution had been violated. The Supremes ruled in Phillips’ favor, 7-2.

While not the clear and sweeping victory that pro-family/morality forces had hoped for, there is much to encourage Biblical marriage advocates.  Consider the following.

  1. A vote of 7-2 in a Court as badly divided as the Court is today (and has been for some time), is extraordinary, if not stunning.  A 5-4 vote would have been more predictable.   The size of the vote in cases of this note is certainly significant.
  2. The majority opinion writer was Associate Justice Anthony Kennedy, the “swing vote’ on the Court, and a Justice who has voted pro-homosexual in the past.  It is also noteworthy that here he was joined by a far-left Justice whose pro-constitution votes are virtually non-existent, Justice Elena Kagan, former Dean of the Harvard Law School.  Two liberals voted pro-homosexual –  the other two female justices, Sonia Sotomayor and the incorrigible senior justice, Ruth Bader Ginsberg. When a swing justice not only votes for a particular party in a critical case, but writes the always-weighty majority opinion for that party, there is added significance attached to the opinion.
  3. The Court vote is also significant because rookie Justice Neil Gorsuch voted with the majority; in his pre-Court days he had no clear record on homosexual rights. Furthermore, he wrote a concurring opinion supporting Jack Phillips.  It is unusual for junior Justices to be so “outspoken”; but Gorsuch has not been timid in his short tenure on the Court. And his voting record coincides strongly with that of the most conservative Justice, Clarence Thomas.  On such a divided Court, this case illustrates THE SUPREME IMPORTANCE OF THE SENATORIAL ELECTIONS OF 2018 AND PRESIDENTIAL AND SENATORIAL ELECTIONS OF 2020 because the President and Senate will select the next Justice(s), ideologically tipping the Court more than is now the situation.
  4. The grounds for the Court’s decision are fundamentally significant because, while considered “narrow” by some (especially homosexual activists searching frantically for some hope in this decision), this ruling is based on the U. S. Constitution’s Free Exercise [of Religion]   Clause.  Phillips’s Free Exercise rights were violated.   Phillips suffered death threats and other act of hate, lost much of his staff and 40% of his business, was ordered to give his staff “training” for handling such situations in the future, and faced additional possible state penalties.
  5. His freedom of [artistic] expression was also at issue, but the Court in its ruling rested on the Free Exercise guarantee. This is most significant because the Free Exercise Clause of the First Amendment, applied against the states by the Fourteenth Amendment, has been the abused stepchild of the  Constitution’s religious liberties guarantees.  Christians so far have had to resort to Free Expression claims in many cases that clearly raise Free Exercise issues.  But here the Court gave Free Exercise its due weight, and we Constitutionalists may hope that this is a permanent turn in a new and fundamentally important direction in such cases.
  6. This case is extremely important as part of the stream of cases that has erupted since the Supremes threw the mantle of special Constitutional protection over same-sex marriage in the 2015 Obergefell case (and companion cases).  It can be argued that no case in American constitutional history contains as many errors/dangers as Obergefell.  Justice Clarence Thomas, in his masterful dissenting opinion, highlighted many of these dangers: Obergefell viciously attacked the proper method of interpreting the constitutional text in general, “liberty,” “due process,” “marriage,” democracy, and – especially – “religious liberty.”  Thomas warned that Obergefell, if relied upon by future courts, would have “ruinous consequences for religious liberty.”  But by departing from Obergefell as precedent in the Masterpiece Cakeshop case, the Court has preserved the constitutional protections listed above and left us Constitutionalists free to fight another day.
  7. “Another day” for us is anticipated very soon, as the Court is expected to address the same basic issues with Barronelle Stutzman, a Christian Washington state florist, who refused to prepare flowers for a homosexual marriage.

Thomas Jefferson prophetically described the “marriage morass” in which America now finds itself in these words: “The germ of dissolution of our federal government is in . . . the federal judiciary; an irresponsible body (for impeachment is hardly a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States.”

Our entire Constitutional system and culture are fundamentally influenced by Court decisions in cases such as those of Phillips and Stutzman.  The Court’s influence was positive in the Phillips case.  May we pray most fervently for a similar, and even stronger, endorsement of the Constitution’s pro-family/morality values in the Stutzman case.