The Supreme Court's Cake Ruling Was Neither Partisan Nor Bombshell

I think it was ABC World News Tonight that, last night (June 4) called the Supreme Court's cake-maker decision a "bombshell" ruling. That is false, it is not.

CNN claims--I roll my eyes--that the ruling somehow "fuels the debate on gay rights." Please. 

In a hyperpartsian era full of 5-4, "partisan line" Supreme Court decisions, it's incredibly important to recognize how different this was. It was not partisan, it was not narrow, it was not a "bombshell," and it doesn't fuel anything.

It Wasn't a Narrow Decision

The New York Times called it a "Narrow Decision." I am annoyed with this title because while it is in one way accurate, it is highly misleading.

The Supreme Court ruled 7-2 that the Colorado cake-maker was within his rights to not make a cake to celebrate a ceremony that his particular denomination of Christianity said was wrong.

That ain't narrow, kids. That took some liberal justices, including Breyer and Kagan, as well as the ever-nonpartisan Kennedy. So just in case someone told you this is a partisan decision, a conservative v. liberal vote, put that out of your minds right now. It wasn't. 

Why on earth would liberal judges support the Colorado cake-maker's right to discriminate against gay people, when they have clearly upheld anti-discrimination statutes before?

It Was a Narrow Decision (in a way)

The answer is pretty simple: the decision does not support discrimination in any way. Kennedy's majority opinion made clear this was a very narrow decision. And you've got to read these, or at least summaries of these, to understand what's going on--otherwise you're letting the wedgey partisan part of your brain tell you what knee-jerk reaction you should have.

The Court's point is essentially this: a custom cake is a form of speech (whereas a pre-made cake is not), and the baker is within his rights to not participate in speech that goes against his religion. No, he does not have the right to deny gay couples his services generally. That is a key distinction.

Kennedy's/Majority's words: "In so doing, the ALJ rejected Phillips’ First Amendment claims: that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed and would violate his right to the free exercise of religion."

As my mom put it really really well (paraphrase): "This doesn't mean he can turn away gay customers. Not at all. If a gay couple shows up with a shirt that says 'we are gay,' and they reach into the fridge and get a cake, or if they ask for a cake for someone's birthday, he cannot turn them down. But if they ask for a custom cake designed to celebrate their gay wedding, that's different. The cake-maker has a right to not participate in speech he does not want to."

Kennedy and the majority justices also went out of their way to reaffirm support for gay rights and for nondiscrimination against people for being gay, in order to make sure it was absolutely clear and that this would not set the wrong precedent.

To look at it another way: if you asked a Muslim cake-maker to make a cake with an image of the Prophet, or perhaps a cake explicitly to celebrate the death of the Prophet, would the cake-maker be within their rights to refuse? Is this not substantially different from a Muslim cake-maker refusing service to someone who happens to be a non-believer and not share their perspective on drawing the Prophet, or perhaps had even drawn the Prophet at some point in the past?

The ReConsider Moment

I'm actually really excited--excited for you--about this ruling. Why? Because it is such a mundane, straightforward ruling... but one that happens to be seated near a wedge issue. With this ruling, your favorite media will show its true colors. Are your favorite journalists or influencers trying to make you mad about this? Are they trying to tell you this is a victory/defeat for whatever cultural "war" you think you are fighting?

If they are doing this, they are trying to wedge you, misinform you, and manipulate you. And today you have the opportunity to scrutinize your media and friends on social media to see how hard they are trying to BS you. 

I have been impressed with a lot of the news outlets I've read, taking an inform-first approach to this ruling. Did yours?

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Erik Fogg

We do politics, but we don't do the thinking for you.