In a highly significant ruling, the US Supreme Court has ruled by a 7-2 majority that a baker had his right to religious freedom unjustly infringed when a State Human Rights Commission sanctioned him for refusing to make a cake for a same-sex wedding. The baker said that it would have violated his religious beliefs to support the wedding, though he would have gladly served the customers in any other way.
The Supreme Court ruled that the State Commission showed an illegitimate animus against religion in its original ruling. One commissioner had claimed that “freedom of religion” has been used to “justify all kinds of discrimination throughout history,” including slavery and the Holocaust. The commissioner called the baker’s religious-freedom claim “one of the most despicable pieces of rhetoric that people can use.”
In response, US Supreme Court Judge, Anthony Kennedy, who himself authored the decision to make same-sex marriage legal in all fifty States in the US, said the description of the man’s faith disparaged his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere. “This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation.”
Furthermore, the Court found an inconsistency in applying the law to protect some free speech, but not other speech, an inconsistency that again revealed an anti-religious animus. On at least three occasions the Commission protected bakers who had refused to make cakes with a text disapproving of same-sex marriage. The Court decided that the Government must be a neutral arbiter in free speech cases and not be the judge of what should be deemed offensive, and not protected, and not offensive.
While the Court ruled on the question of religious freedom, it did not address the question of whether free speech could be compelled and, for instance, force a baker to express a pro same-sex marriage message apart from religious freedom concerns.