“Beneath the unanimity, however, lay a splintered court, with a number of justices saying the bomb must finally detonate. Either religious freedom protects those who treat same-sex couples unequally in public life, or it doesn’t.
Justice Neil M. Gorsuch, in a concurring opinion, counted the cost of dodging this uncomfortable question: “Individuals and groups across the country will pay the price” of endless litigation over the unsettled question, “in dollars, in time, and in continued uncertainty about their religious liberties.”
Religious liberty or freedom from discrimination: Advocates on both sides insist the question is simple. In fact, it is very difficult. Two bedrock principles of the Constitution are brought into direct conflict. Americans have a right in their public lives to be free from discrimination based on who they are. This right finds expression in laws requiring businesses and agencies that serve the public to do so without discrimination.
Americans also have a protected freedom of belief and expression. They cannot be compelled by the government to express or reject any religious views or political opinions.
No case puts the matter more sharply in relief than the matter of the baker and his cakes, which may well be headed back to the Supreme Court for round two. A transgender individual has asked Phillips to create a celebratory cake. When Phillips refused, a state district judge levied a fine without any of the gratuitous commentary that previously gave the justices their wiggle room.
The fact that these bedrock principles have collided inside a bag of cake frosting does not make them frivolous. Either the baker’s freedom of belief allows him to sell customized cakes only to those people whose identities and conduct comport with his religious beliefs, or the would-be cake buyers of Lakewood have a right to decide what Phillips will write on cakes as long as he operates a public business.
Underlying this dispute — the really explosive part — is a slippery slope. It seems monstrous to think that artisans have no control over the expressive content of their creations. Surely a seamstress who willingly provides choir robes and judicial robes should not be compelled to make robes for a Ku Klux Klan rally.
You and I might agree that a same-sex wedding is not remotely like a Klan rally. But some number of religious people would say that both are examples of sinful gatherings. I greatly prefer our view of the matter, but I’m not sure the government should — or rightfully can — put those who disagree out of business.
In a short but instructive concurring opinion to the Philadelphia ruling, Justice Amy Coney Barrett laid out difficult questions that will hit like shrapnel if and when this bomb goes off. Her insight reminds us that, of all the ways change can be made in a free society — by persuasion, by compromise, through boycotts and marches and social media campaigns — lawsuits can be the most destructive. “I’ll take my business elsewhere!” may be preferable to “I’ll see you in court!””