Here’s how to use the Masterpiece Cakeshop decision to save the First Amendment

Daniel Horowitz · June 5, 2018  
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Conservatives are engaging in a spirited but semantic debate over whether yesterday’s court ruling in Masterpiece Cakeshop was a meaningful victory for religious and civil liberty or not. But both sides should agree that this case must be used as the impetus to fight to the death for religious liberty, not as an excuse to remain complacent and allow the courts to own this issue in the future. Let’s not repeat the mistakes of Obergefell.

The urgency to act now for First Amendment rights   

This much is clear: The court’s favorable ruling for Christian baker Jack Phillips has almost no application to the multiplying cases of coercion against religious businesses. The court implied that in almost every other case, it is open to clamping down on property and conscience rights (which Madison referred to as “the most sacred of property”).

David Cole, the ACLU lawyer representing the gay couple, rightfully boasted in the Washington Post, “We lost a battle but won the war,” because Anthony Kennedy made it clear that religious sensibilities or conscience objections do not give businesspeople the right “to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Cole noted that after the court ruling, the same couple “could go right back into Masterpiece Cakeshop today and request a cake to celebrate their wedding anniversary — and if Jack Phillips refused them, he would have no First Amendment right to turn them away.”

Also, it’s important to remember that the Supreme Court has allowed many lower federal and state court rulings siding against religious business owners to stand. Do we really want to wait for a full-scale Obergefell-style opinion on religious liberty and for the lower courts to continue creating political momentum for such a ruling as they did with gay marriage between 2013 and 2015? Shouldn’t we use the current momentum from this very minor victory as a rhetorical tool for pushing Congress and state legislatures to get back on the playing field and cement these rights through civil rights legislation and judicial reform?

The threat from lower courts

The arc of litigation in the lower courts and the reaction of the Supreme Court is almost always a one-way street for conservatives. Imagine if a lower federal court, a state court, or state policy overrode an area of settled judicial law or a blatant Constitutional right that the Left agrees with. Or imagine if a state or lower court essentially ignored Obergefell or Roe. You can bet your life that the Supreme Court would take up the appeal expeditiously, rule categorically against the state or lower court on a very broad level not limited to the narrow confines of the case, and would sharply rebuke all those involved. Yet this never happens when lower courts violate settled law and states violate the most sacred elements of the First Amendment not in vogue with the Left.

Meanwhile, the Left will pick up and chip away on this impending narrow ruling. The Left is always that much closer to success. We already saw this when lower court judges, as Justice Clarence Thomas warned, continued fighting against Trump’s immigration executive orders even after the Supreme Court had already stayed injunctions on them. Ditto for the judges who made illegal DACA amnesty the law of the land after SCOTUS rebuked the judge 9-0 for demanding access to Trump’s political advice on the issue.

We are seeing the same interplay in litigation on religious liberty. Opinions violating settled law and constitutional rights that should never be tolerated by the high court for even one day are succeeding.

If the Supreme Court actually believed in real rights the way it believes in Roe and Obergefell, it would have spoken to the core issue in Masterpiece. The court would have taken the appeal from the pharmacy in Washington and the photographer in New Mexico who were forced by lower federal or state courts to violate their consciences. Indeed, the “silence” on the fundamentals of the Masterpiece ruling is also clearly designed to telegraph the message to blue states and lower courts to take this ruling apart and limit it to nothingness.

Look at what the lower courts have done with the few more sweeping victories we’ve secured in Heller on guns and Hobby Lobby on religious liberty for employers. After losing its case in Hobby Lobby to directly force religious employers to cover abortifacients in their health insurance compensation plans, the Obama administration concocted a new scheme to get around it. Yet, appallingly, only one circuit court out of over half a dozen cases throughout the appellate level sided with the religious institutions. The Supreme Court allowed much of the lower court shenanigans to stand, as it did with Heller, rather than fully applying its previous ruling. Now, we have reached the point where lower courts are demanding Trump continue this policy.

We have two options, and relying on the courts shouldn’t be one of them    

In this case, we have two options. We can work as conservatives to make religious and conscience rights the civil rights of our time, or we can declare victory, talk about how magnanimous and brilliant Kennedy’s opinion was, fundraise off “appointing more judges,” and hope for the best.

If the movement is really serious about protecting a right we cannot afford to lose, we would pursue the following policies.

  • State religious protections bills: Why is Mississippi the only state in the union with a solid religious liberty law in place to protect against anti-conscience coercion of private property owners? In 2016, Mississippi passed HB 1523, which protects private business owners and government officials from being forced to violate their consciences and provide service for events that violate their deeply held religious beliefs. Republicans control numerous state governments. Rather than sending out fundraising letters praising Kennedy’s incoherent Masterpiece decision, social conservative groups should be stepping on the gas pedal promoting these laws in every state the same way the cultural Marxist groups promote transgender ordinances.
  • Kick the lower courts out of religious liberty litigation: Mississippi is lucky enough to be situated within the jurisdiction of the Fifth Circuit Court of Appeals, which immediately overturned the ridiculous district court injunction against HB 1523. Most other states aren’t as lucky. Congress should pass a law stripping lower courts of the power to block implementation of religious liberty laws. The Supreme Court would have to take the appeal directly, and the court’s passivity would work to our benefit and not to our detriment, as is currently the case. Alternatively, Congress can make a rule that any lower court ruling forcing an individual to violate his conscience must be stayed until the appeal to the Supreme Court is exhausted.
  • Place the federal government on the side of the First Amendment: Congress should place a rider in the appropriation bill funding the Justice Department prohibiting use of any federal law enforcement to enforce any court opinion or governmental action taken against someone who declines to violate his conscience with his private property. Congress should also prohibit the Equal Employment Opportunity Commission from taking any punitive action against such businesses. This will signal to states that they are free to fight back without the feds stepping in and making it worse. States should also be encouraged to do the same thing with their law enforcement.

These actions should have been taken immediately after Obergefell, and yesterday’s opinion only reinforces both the urgency and opportunity to push for them now. The fact that the opinion wasn’t a full Roe against religious liberty is not reason to celebrate and be complacent but reason to double down in the fight for the most foundational liberty while we still have public support.

Anthony Kennedy warned that the future contours of First Amendment rights of conscience and property “must await further elaboration in the courts.” No way. How about for once we actually take our future into our own hands as a self-governing people? Let’s take to heart the words of the great Justice Joseph Story:

Let us never forget, that our constitutions of government are solemn instruments, addressed to the common sense of the people and designed to fix, and perpetuate their rights and their liberties. They are not to be frittered away to please the demagogues of the day. They are not to be violated to gratify the ambition of political leaders. They are to speak in the same voice now, and forever. They are of no man’s private interpretation. They are ordained by the will of the people; and can be changed only by the sovereign command of the people.


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.