Yet another Colorado court decision against Masterpiece Cakeshop owner
Jack Phillips
showed again how U.S. Supreme Court reticence can have awful real-world consequences, such as condemning a good man to years of additional persecution.
It also suggests that, somehow and someway, Congress might be wise to create legally enforceable penalties for lower court judges who thumb their noses at Supreme Court guidance.
THE INTOLERANT CAMPAIGN AGAINST CHRISTIAN BAKER JACK PHILLIPS CONTINUES
First things first: What the Colorado Court of Appeals did to Phillips today is abominable, but a little background is necessary. Phillips is the cake artist who readily serves homosexual people but refused, on religious grounds, to create a cake for a homosexual wedding ceremony. After Phillips spent six years in court, the U.S. Supreme Court ruled in his favor in that particular controversy, but in a way that weaseled out of strong affirmation of religious liberty. Instead, it objected not categorically to the denial of free religious exercise, but only to the clear and open hostility to those beliefs that Colorado officials showed.
In sum,
the 7-2 decision by former Justice Anthony Kennedy
could be interpreted to say that if the state officials had ruled the same way but kept their mouths shut, Phillips might have lost. As is so often
the situation under Chief Justice John Roberts
, who joined Kennedy’s decision without joining concurring opinions that would have created a majority for a stronger defense of religious liberty, the high court’s search for the narrowest possible result merely invited further, seemingly endless rounds of new litigation.
Predictably, that’s what happened to Phillips. Not content to let him get away with refusal to serve same-sex weddings, a leftist lawyer demanded that Phillips make a cake to celebrate a gender transition and another one depicting Satan. These were clearly not good-faith requests but mere harassment, as was shown when the attorney said the very goal was to “correct the errors of [Phillips’s] thinking.”
Of course, Phillips refused, which kick-started another Colorado attempt to nail up Phillips as a sacrifice to their gender gods. Naturally, Colorado’s courts ignored the patently offensive request for a Satan cake and instead again held Phillips responsible for illegal discrimination based on gender, his religious objections notwithstanding. Today’s affirmation by the appeals court of the lower court’s ruling takes ample advantage of the loophole left open by the Supreme Court while
cherry-picking from other Supreme Court religious liberty decisions
to reach its desired, anti-Phillips conclusion.
Thus, Phillips remains in an ongoing court battle 11 years after his faith stance was first challenged, with more rounds of financially and emotionally costly appeals necessary before he can vindicate his rights. This is the sort of thing that readily happens when the Roberts court splits legal hairs in an attempt to avoid central, constitutional questions. The hair-splitting is not humility, it’s cowardice. And it causes people to suffer.
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That said, even when the Supreme Court does rule more clearly, leftist judges in lower courts are increasingly bold about ignoring those rulings or inventing spurious exceptions to them. This is no time to catalog those examples but rather to note the trend and to say that what the Colorado court did today violated the spirit of, and the most rational takeaway from, the earlier high court ruling in Phillips’s favor. At some point, the lower court rulings amount to such willful disobedience that they become effectively lawless.
Numerous constitutional ramifications stand in the way of a simple solution to this problem of lawless lower courts, but Congress should at least begin studying if there’s a good remedy. It would be a worthwhile study, even if a solution won’t be a piece of cake.
