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Looks like Justice Kennedy will be the deciding vote in the Masterpiece Cakeshop case
And the nature of his questions makes it characteristically hard to tell where he stands.
I suppose this is what you'd want in a good Supreme Court Justice. He asks challenging, probing questions to both sides and doesn't give a hint of which way he's leaning. If that's the standard, then Anthony Kennedy wins Justice of the Year with his performance in today's hearing for Masterpiece Cakeshop v. Colorado Civil Rights Commission.
The problem, of course, is that this case wouldn't be happening at all if Justice Kennedy hadn't joined the majority in forcing gay marriage down the throats of all 50 states back in 2015. The Supremes are now being asked to decide whether Christian bakers can be forced to bake a cake for a the gay weddings that Kennedy made possible, and as is so often the case, it appears he'll be the deciding vote on this one too:
He asked a lawyer for the Trump administration whether the baker, Jack Phillips, could put a sign in his window saying, “We don’t bake cakes for gay weddings.” The lawyer, Noel J. Francisco said yes, so long as the cakes were custom made.
Justice Kennedy looked troubled and said the administration’s position was an affront to the dignity of gay couples.
Later, though, Justice Kennedy said that a state civil rights commission that had ruled against the baker had “neither been tolerant nor respectful of Mr. Phillips’s religious beliefs.”
The case, which pits claims of religious freedom against the fight for gay rights, has attracted extraordinary public attention and about 100 friend-of-the-court briefs.
Mr. Phillips says that he should not be forced to use his talents to convey a message of support for same-sex marriage. The couple, Charlie Craig and David Mullins, say that businesses open to the public should not be allowed to discriminate against gay men and lesbians.
Tuesday’s argument, which lasted almost 90 minutes instead of the usual hour, appeared to divide the justices along the usual lines.
The more liberal justices probed whether all sorts of artisans — tailors, hair stylists, makeup artists, chefs — could refuse to supply goods and services for same-sex weddings. Conservative justices considered whether artists can be required to convey messages with which they profoundly disagree.
Kristen K. Waggoner, a lawyer for Mr. Phillips, said her client was an artist, one who created a sort of sculpture.
Justice Sonia Sotomayor appeared unpersuaded. “When have we ever given protection to a food?” she asked.
Justice Sotomayor's question gives away a disingenuous approach to the issue, which the left seems to absolutely require in order to sound reasonable on this. No one thinks the issue here is "a food," although some will pretend to think that. The issue is whether a person whose faith considers gay marriage immoral can be forced to play a role in a gay wedding. The cake is merely the form the forced participation takes. It doesn't matter if it's a cake, a photograph, a floral arrangement or the role of presiding over the ceremony. What matters is that, Justice Kennedy's ruling notwithstanding, many Americans find gay marriage morally objectionable and don't wish to be involved in it either directly or indirectly.
Jack Phillips isn't trying to stop Craig and Mullins from being married. He's simply declining to play a role in it. If he doesn't have that right, then there is no religious freedom in this country.
One of the arguments of the other side is that religious freedom can "go too far" and that this is what happens when one person's desire to exercise religious freedom causes another to feel they have not been afforded equal treatment.
But if that happened here, it's only because Craig and Mullins had an unrealistic expectation that absolutely anyone they approached would be supportive of their intention to marry. The law says they have the right to get married. I don't agree with it, but I don't make the law. For now, they have that right. But that doesn't extend to the right to force absolutely everyone and anyone to support, endorse and participate in their marriage ceremony.
I can't stop you from getting married, but I don't have to help you do it. And if you need help, then it's on you to find someone who's willing to provide it. It's not on me to justify why I don't want to provide it. I just don't. That's the only reason I need. Sorry. Keep looking.
The argument that religious freedom would "go too far" if Phillips wins is exactly backwards. Gay rights goes too far when it infringes on the rights of others to passively decline participation in what gay people want to do. Besides, if feeling humiliated is the standard, can't it be argued that Phillips has been every bit as humiliated by his treatment by Craig and Mullins, and by the Colorado Civil Rights Commission?
I've actually seen liberal commentators describe Phillips as "the bigoted baker." What a crock. Phillips is simply staying true to his faith, which is apparently a threat to the pushers of the new social mores we're all expected to live by.
I've told you from the start that gay marriage is really just a proxy for the larger attack on Christianity, and this case is that attack playing out right before our eyes. I'd like to think Phillips's fate is in good hands with a generally conservative Supreme Court. But when the deciding vote is going to be the man who gave us gay marriage in the first place, why should I be confident?
Dan's new novel, BACKSTOP, is a story of spiritual warfare and baseball. Download it from Amazon here!