There is no frosting for Christians in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the United States Supreme Court’s recent case addressing Religious Freedom.  The case was a win for persecuted Christian cakeshop owner, Jack Phillips, but not for Christians generally.  Our God given and Constitutionally protected “Freedom of Religion” dodged the figurative judicial bullet to the head in Masterpiece Cakeshop, all the while being reduced to a “Freedom from Disparagement.”

           “Disparagement” is defined in to speak of or treat slightingly; depreciate; belittle.  Synonyms include: ridicule, discredit, mock, demean, denounce, derogate.  Freedom from disparagement is such a miniscule freedom as to be an illusion of freedom, indeed, it is no freedom at all.  The Supreme Court concocted “Freedom from Disparagement” is not a God given right and is not mentioned in the Constitution, let alone protected by the Constitution.

           A careful reading of Masterpiece Cakeshop reveals no protection from any governmental effort to persecute Christians for living their faith, nor expressing their beliefs, save the government must use respectful language as it proceeds to persecute, fine and imprison Christians.  Under the holding of Masterpiece Cakeshop, the State of Colorado where the case originated, the remaining 49 states, every local government within our 50 states and the federal government may persecute, fine and jail Christians for refusing to act in violation of their Christian faith.  This would include refusing to verbally endorse homosexual-marriage.  The only restriction on our governments under the Masterpiece Cakeshop case is that the government may not disparage Christians, at least not during the recorded portion of the persecution hearing. 

           There has been so much cheering and rejoicing over the case, that by this point the reader may conclude this writer is simply an old sour puss.  In my own defense I must say that I do sincerely cheer and rejoice for Jack Phillips and his family, but as for the remaining Christians in America Masterpiece Cakeshop is a shot over our collective bow, not a cause to rejoice. The only defense I have for my opinion is that the words in Masterpiece Cakeshop, for me, have meaning and they mean what they say. Let’s look at those words.

           The circumstances of Masterpiece Cakeshop began in 2012 when a same sex couple visited the Cakeshop and inquired about purchasing a cake for their wedding.  The owner of the shop, Jack Phillips, explained to the gentlemen that as a practicing Christian he did not condone same-sex marriage.  He additionally explained that (at that time) the concept of a “same-sex marriage” did not legally exist in Colorado.  Therefore he declined to sell them a wedding cake.  The same-sex couple filed a complaint with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation.  Predictably, the Commission found that Phillips and the Masterpiece Cakeshop had discriminated against the same-sex couple because they were homosexuals.  The matter wound its way through the Colorado court system and ended up before the Supreme Court of the United States.

           Justice Kennedy wrote the opinion of the court.  Justice Kennedy, by way of background, also wrote the opinion in the Obergefell v. Hodges (2015), wherein the Supreme Court of the United States discovered, some 228 years after the Constitution of the United States was adopted, that it contained a right of homosexual-marriage.  Justice Kennedy has now created a new right in Masterpiece Cakeshop, the “Freedom From Disparagement” and he gave it the super-power to trump other rights.

           It should be noted in Justice Kennedy’s defense, however, that has not recanted Obergefell.   In at least three different places in Masterpiece Cakeshop he states that the holding in the case was fact specific based upon the disparagement of Phillips and Christianity.  Justice Kennedy noted several incidents of hostility and disrespect directed at Phillips and Christianity by the Colorado Civil Rights Commission.  At several points during the hearing Commissioners told Phillip that he could not act on his Christian beliefs, if he wanted to engage in business in the State of Colorado.  Another Commissioner conflated Christianity with racism and the Holocaust.  Justice Kennedy also thought it was important that neither the Commissioners nor the State of Colorado walked back these comments.  Perhaps had there been a sincere apology Justice Kennedy would have gone the other way.

           Kennedy’s second objection to the Commission’s decision was that it did not address three prior decisions of the Commission wherein it did not find a violation of civil rights when bakers refused to prepare wedding cakes for Christians which displayed Biblical passages defining marriage as being only between one man and one woman.  An honest and logical mind can only conclude that there is no difference between these cases and Masterpiece Cakeshop, as they all focus up the right of a person to live his faith, even if it means refusing to participate in a proposition which violates his conscience.

           Christians should take no comfort in this minor logical point concerning disparate decisions.  Let us not mis-underestimate the enormity of the judicial imagination and hence its power to imagine away such minor details.  An imagination, after all, which can imagine that there is no difference between a same-sex marriage and marriage as it has been understood since the beginning of time, can, well, imagine the unimaginable.  We lesser mortals should not try.

           And we do not need to.  The minority opinion of Justice Ginsburg provides us with the imaginative difference, that is the legal distinction, between Phillips’ case and the other Colorado Civil Rights Commission cases.  Justice Ginsburg imagines that there is no difference between a same-sex marriage and a traditional marriage, and therefore there is no difference between the cakes for the occasions.  Marriage is marriage and a cake for one is a cake for both.  Consequently, the only difference, in the imagination of Justice Ginsberg, is that since Phillips refused to participate in the same-sex wedding the only reason he could possibly have is that he is biased against homosexuals and therefore illegally discriminated against homosexuals.  This is a case of judicial imagination when homosexual-marriage is conflated with traditional (non-hyphenated) marriage.

           The point is that the Masterpiece Cakeshop was the perfect case to acknowledge that our First Amendment Freedom of Religion, our right to live our faith, trumps the government’s apparent need to engineer our social interactions and control our minds.  The case did not recognize the primacy of our Freedom of Religion.  Masterpiece Cakeshop was decided in favor of the Christian because the Colorado Civil Rights Commission disparaged Phillips and Christianity.  You can be sure that from this point forward Civil Rights Commission hearings will be perfectly polite, like most criminal trials.  There will be no frosting for Christians.

The author, James Rigby, is an attorney who resides in Montana.

This article was first published at