Both opponents and advocates of the Supreme Court decision say it’s a narrow ruling. Not in the current cultural context.
The ACLU, the ADL, the National Council of Jewish Women and others in the liberal corner say that this week’s Supreme Court ruling on whether a cake shop must bake a cake for a same-sex wedding is a narrow ruling. It did not rule that same-sex couples may be denied access to public accommodations (such as cake shops).
The Alliance Defending Freedom, Agudath Israel of America and others in the conservative corner also said that this week’s ruling was narrow, since it did not decide the matter at hand on the basis of the First Amendment guarantees of freedom of religion and freedom of speech.
We believe the ruling is broader than it looks, and may well set a precedent.
The basis of both the liberal and the conservative take on this week’s ruling is that it was based on the behavior of the Colorado Civil Rights Commission, which, said the court, did not evince a neutral attitude toward religion when it considered the cake shop case that came before it. Rather, the commission demonstrated hostility toward religion, as evidenced by such statements by various commission members that the religious beliefs of the cake shop owners were akin to justifications of slavery and the Holocaust; that is, that religion has been used to justify history’s worst crimes and the invocation of religious belief by the cake shop owners was no better.
The clear implication is that had the Colorado Civil Rights Commission evinced a neutral attitude toward religion, its decision would likely have been upheld by the Supreme Court. Thus, the message is clear. In all such future legal conflicts between religious belief and public accommodations, the proponents of public accommodation need only evince a neutral attitude toward religion for their position to be legal, and upheld in the courts, all the way to the Supreme Court.
So runs the logic in the liberal corner and the fear in the conservative corner. One liberal organization said that the cake shop in Colorado won the battle but lost the war. One conservative organization said that the state may not presume religious rights to be of lesser value than anti-discrimination laws.
We believe that both sides ignore the likely character of future legal conflicts on this subject. We are not prophets. We cannot predict either the character of future conflicts or the consequent legal rulings. But we can observe the nature of this conflict, which is deeply rooted culturally. The contours of this cultural conflict are not changing any time soon.
The chief cultural contour is an inherent hostility — not usually personal, but certainly ideological — between the two sides. The idea of a “neutral,” liberal attitude toward religion in the context of a dispute over same-sex marriage is virtually impossible, at least in the current, deeply rooted climate. Likewise, the idea of a “neutral,” conservative attitude toward same-sex marriage in the context of civil rights is virtually impossible, at least in the current, deeply rooted climate.
Hostility is inherent in the attitude of each side, at least in the eyes of the other side; and often enough hostility is candidly admitted on both the liberal and conservative sides. On the same-sex question, religion is seen as inherently bigoted, or civil rights are seen as inherently corrupted. We find it virtually impossible to imagine that these attitudes — the very opposite of “neutral”; clashing, sharp-edged — will not characterize future cases of conflict on this issue.
Justice Anthony Kennedy’s words strike us as a strictly theoretical balance that, in real life, assumes the form of dogmatic differences, dramatically expressed:
“The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
As we say, we are not prophets, but if “neutrality” toward religion or same-sex marriage remains the standard on the Supreme Court, and not just the approach of swing-vote Justice Kennedy, then this week’s ruling is as broad as it gets, since it had to choose between two jagged edges. In the current cultural climate, that’s the shape of these disputes — jagged, denunciatory, censorious — whichever one of the sides a future Supreme Court ruling will have to choose.
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