George Hasara

George Hasara – Columnist

How many Supreme Court Justices can dance on the head of a pin? The recent ruling on the Masterpiece Cakeshop v. Colorado Civil Rights Commission is yet another example of how to become a constitutional contortionist when the need arises. Instead of providing clarity on the question of whether or not a person can be forced to do something that goes against their beliefs, the Supremes straddled the judicial fence. Colorado baker Jack Phillips had refused to bake a wedding cake for a same-sex couple back in 2012 because of a conflict with his religious convictions. The Supreme Court’s verbose 59-page, 7-2 decision, took a sideways approach, ruling in Phillips favor, but only because of a peripheral issue and not on the principle of religious liberty. The baker was willing to sell any cake to the couple, but not a creation especially designed for a gay wedding. Nevertheless, the couple successfully sued Phillips for discrimination. Phillips had also consistently refused to make Halloween-themed cakes, because of his religious convictions. So far, he’s not faced any lawsuits from ghosts or goblins. As an added note, in 2012, Colorado did not recognize gay marriages. Perhaps the state should have sued itself for discrimination. The Supreme Court overturned the ruling of discrimination handed down from the Colorado Civil Rights Commission, citing hostility toward Phillips’ faith. One commissioner had said, “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust…” Why is it that certain people can’t resist playing the “Hitler” card? Comparing bakers to butchers sounds a tad prejudicial. However, if the commission had pretended to be more empathetic toward Phillips’ values, their ruling would have been upheld. So, it was a matter of style, not substance, that apparently was crucial. The cake case was a perfect opportunity to rule on the issue of religious liberty in particular and freedom of association in general. Neither was addressed. Instead, the Court dove into a sea of minutia ranging from the history of the wedding cake to whether or not a decorated cake is an artistic expression, protected as free speech. The ever-expanding galaxy of rights is so convoluted that even the Supreme Court doesn’t know what to do when competing rights butt up against each other. Is freedom from discrimination more important than freedom of religion? Does the right of association also include the right NOT to associate? Do we lose our rights because we operate a business? Interestingly enough, customers are free to discriminate (or not) in the marketplace as they see fit, without the threat of governmental retribution. Somehow, we manage to muddle through it all without mandates and lawsuits dictating with whom we associate. Imagine receiving a call from a government agency saying, “We see from your credit card transactions that you haven’t been purchasing from minority-owned businesses. We need to talk with you.” Recently, White House Press Secretary Sarah Huckabee Sanders and her dinner party were asked to leave a Lexington, Virginia. restaurant, because of the owner’s moral aversion to the Trump administration. Kicking someone out of your restaurant because of their politics is pretty darn discriminatory, but it was the owner’s right to do so. Sanders quietly left, presumably to find a more accommodating establishment. This time, there will be no lawsuit and the Supreme Court will not have to worry about concocting a new series of judicial gyrations in order to avoid dealing with an issue head on. Contact George at georgehasara@yahoo.com.

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