Neil Gorsuch Gets to the Heart of the Christian Cakeshop Case

Joe Scudder
Written by Joe Scudder

Christian cakeshop owner Jack Phillips is going before the Supreme Court to defend his First Amendment rights.

Can the government force a Christian cakeshop to affirm the reality and morality of same-sex “marriage.” The obvious answer is “no” because that’s barbaric. But you can’t say the obvious to the Supreme Court.

Thankfully, Neil Gorsuch, one of the major triumphs of the Trump Presidency, is asking some incisive questions about the case, making a distinction between acting towards persons and disagreeing with actions.

We need to pray for a good outcome.

The Federalist reports, “Neil Gorsuch’s Question Is Key To Unlocking The Upcoming Masterpiece Cakeshop Decision.”

If Phillips’ First Amendment rights allow him to break Colorado anti-discrimination law with respect to sexual orientation, then why couldn’t somebody else do so with respect to race?

This question has dominated media arguments against Phillips, and was the issue for liberal justices during oral arguments. Justice Sonia Sotomayor harped on Newman v. Piggie, Justice Stephen Breyer brought up Ollie’s Barbecue, and Justice Elena Kagan asked point-blank: “Same case or not the same case, if [Phillips] instead objected to interracial marriage?”

Of course, Phillips’s attorney replied that was “a very different case” because the “objection would be based on who the person is, rather than what the message is.” “Mr. Phillips,” she explained, “is looking at not the ‘who’ but the ‘what’ in these instances.” To which Justice Neil Gorsuch replied, in arguably the most important question of the entire case:

“Well, actually, counsel, that seems to be a point of contention. The state seems to concede that if it were the message, your client would have a right to refuse. But if it — the objection is to the person, that’s when the discrimination law kicks in. That’s footnote 8 of the Colorado Court of Appeals’ decision. I know you know this. So what do you say to that, that actually what is happening here may superficially look like it’s about the message but it’s really about the person’s identity?”

You see, in the Supreme Court, neither the Left nor the Right believes that religious freedom trumps anti-discrimination law. Neither claims practicing homosexuals are just automatically entitled to any service they happen to demand. The law forbids just one thing: discrimination on account of sexual orientation (or race, religion, etc.). The objection must be “to the person,” as Gorsuch pointed out: “that’s when the discrimination law kicks in.”

The footnote Gorsuch mentioned is a great illustration of this. Several Colorado bakeries turned down orders from a Christian for a Bible-shaped cake with Leviticus 18:22 on it. They were not guilty of discrimination because their refusal was based on the message the Christian wanted his cake to convey, not the simple fact that he happened to be a Christian. Le Bakery Sensual had no problem serving Christians in general, and in fact would have been willing to make that Christian pretty much any cake but the “traditional marriage celebration cake” he ordered.

By the way, here’s Megyn Kelly in her wildly unpopular show openly propagandizing against freedom:

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by EagleRising.com


About the author

Joe Scudder

Joe Scudder

Joe Scudder is the "nom de plume" (or "nom de guerre") of a fifty-ish-year-old writer and stroke survivor. He lives in St Louis with his wife and still-at-home children. He has been a freelance writer and occasional political activist since the early nineties. He describes his politics as Tolkienesque.

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