Should a society that values tolerance tolerate intolerance? In a world committed to non-discrimination, can a state discriminate against those who discriminate?
Those mind-bending questions are behind the case of the same-sex couple and the religious baker that the Supreme Court heard Tuesday. The facts are quite simple: A gay couple in Colorado wanted a custom cake for their wedding. They went to Masterpiece Cakeshop for the cake, but the baker refused to serve them, claiming his religion forbade him from supporting same-sex marriage. Colorado, which bans shops open to the public from discriminating based on sexual orientation, found that the baker violated the law. Now, that baker is arguing to the Supreme Court that the state’s anti-discrimination law violates his constitutional right to freedom of religion.
In other words, the baker is saying: Colorado has to tolerate the baker’s intolerance and can’t discriminate against the baker who discriminates. Got it?
Justice Anthony Kennedy sure does. At the argument before the Supreme Court Tuesday morning, he dropped the hammer on the state of Colorado while its lawyers argued that the state law is generally applicable – that everyone in business has to follow it, no matter their religion (or lack thereof). Therefore, the state’s argument went, the law does not violate anyone’s religious freedom.
“Tolerance is essential to a free society,” Kennedy said in the midst of that argument. “And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of [the baker’s] religious beliefs.”
Now, all the usual caveats apply here: Justices say lots of different things during oral argument to test various theories and probe the positions of the lawyers and their colleagues. They don’t necessarily believe everything that comes out of their mouth, so you can never say for sure how a justice will rule until the decision is handed down. And justices can change positions in cases at any time until the case is decided.
But, let’s be real: Justice Kennedy sits at the center of the Supreme Court, meaning that, particularly in close cases, what he wants is what the Court does. It’s been that way for a long time, and will continue until the Court’s composition changes. So, with all eyes and ears on him, Kennedy proclaiming that he thinks the state is not being “tolerant nor respectful” is about as clear an indication of what will happen in this case as anyone could have possibly expected from Tuesday’s arguments.
It doesn’t matter that this is a slippery slope to other businesses discriminating against gay people. The lawyer for the baker tried to lay out a differentiation there, saying custom-cake bakers are different because they are expressing themselves through their work. So, the lawyer was saying, a chef or a tailor or anyone else who does business with the same-sex couple for their wedding is not speaking against their religion. Why? Because, well, they just aren’t. Taking a cue from Justice Samuel Alito, who made such an argument in the Hobby Lobby case, the lawyer also said that race is different, and that it would be discriminatory for a baker to deny services to an interracial couple. It was an incredible instance of “the words are coming out of my mouth, so it must be true” reasoning.
So what we’re left with is an argument that boils down to bakers and gay people being special. Bakers are supposedly special because, unlike other service providers, they communicate their message in a unique way. And gay people, unlike other groups that have previously been subject to discrimination, are apparently special in that their dignity is just not as important as others’.
And that’s the argument Justice Kennedy very clearly tipped his hand toward Tuesday morning.