Did the Supreme Court just send us back to the Middle Ages?

I am not a Constitutional  lawyer.  I am not an alarmist by nature.  What I am is a global historian and expert on democracy.   And by the standards of both history and democracy today’s ruling in Masterpiece Cake Shop vs. Colorado Civil Rights Commission opens the door, if only by a crack, to a medieval condition of society in which different religious communities within a given state exist as separate societies, operating under different customary laws, rather than as members of an integrated society living under a single, uniform, secular body of law.

To be sure, the court’s decision was framed very narrowly, which allowed the strong 7-2 vote in favor of the baker’s refusal to bake a cake for a gay wedding.  Indeed, given the determination of facts in the case, I likely would have voted with the majority.   The relevant facts were: (1) that at the time of the decision by Masterpiece Cake shop not to bake the requested wedding cake for a gay couple, gay marriage was not yet recognized as legal in the state of Colorado, nor yet ruled a universal right by the U.S. Supreme court.    There was thus, at the time of the contested action, no legal right to nondiscrimination mandating treatment of gay marriage as a legally sanctioned event.  (2) In the course of their decision, the Colorado Civil Rights Commission gave evidence of prejudice against the plaintiff’s religious beliefs, not treating the complaint in the same way it had treated complaints about expressions of anti-gay sentiment, and labeling his religious objections to gay marriage as equivalent to defending slavery or the Holocaust. The CCRC thus did not give due weight to the plaintiff’s religious beliefs in reaching its decision.  Since strict neutrality about religious beliefs and fair weighing of those beliefs against competing concerns is required, the CCRC’s decision was not validly arrived at.

These are reasonable grounds for rejecting the CCRC’s decision in this case.   The Court’s decision does NOT automatically allow other artists and artisans — bakers, photographers, flower arrangers, musicians, wedding planners, etc. — to refuse their services to future gay weddings, since it is now after the Supreme Court recognized the right of Americans to have gay marriage on equal conditions with heterosexual marriages in United States vs. Windsor.  And it certainly does not give free rein to any artist or artisan selling services to the public to refuse to provide their services to customers based on their religious views.

Nonetheless, one can certainly worry that the court’s narrow and careful decision will be wrongly portrayed in conservative press, conservative churches, and social media as exactly what it is NOT.  That is, it may be hailed as a resounding triumph for the right of Americans to discriminate against others with whom they have religious disagreements.

That, by the standards of history and democracy, would be a disastrous result.  In medieval Europe and the medieval Ottoman Empire, it was taken for granted that people of different religions would not perform services for each other.  Whether it was Jews confined to their ghettos in Europe, or Christians and Jews confined to their millets in the Ottoman domains, each religious community had its own suite of bakers, butchers, doctors, and merchants to serve its members.  In more enlightened periods, rulers might obtain the services of a Jewish doctor or banker; but in more reactionary times whole minority religious communities were expelled.  That created no great loss for the wider community, as it already had its own complete set of artists, artisans, and service providers to meet its needs.  More importantly, each religious community was expected to live by its own laws, and was free to not deal with members of other community in any way if they chose not too.  The King or Sultan may have been ruler of the entire state, but was expected to govern in accord with the customary and religious law of each community.

The threat to democracy from this system was obvious: if people could be treated differently, or even expelled, on the basis of their religious beliefs, then there could be no equality or common citizenship.  Among the core principles of every democratic revolution — the American of 1776, the French of 1789 — were the emancipation of religious minorities, the equal treatment of all under the law regardless of religion, and the institution of uniform citizenship rights and responsibilities under secular law.  Religious practices were protected, but as a matter of voluntary adherence for worship, never as a basis for breaching any current legal protections against discrimination.  To go back to allowing citizens to treat other citizens differently in the daily life of the marketplace is to open the door to pervasive segregation (what if realtors or home sellers refuse to sell the homes they have decorated to people of different religions?), and to create a demand for separate communities to provide their own services solely to co-religionists.

The United States is already tending in this direction.  The alt-right animus against Muslim immigrants is often expressed in the belief that Muslims will only follow sharia law and thus never become true Americans.  In the past, Protestants doubted that Catholics such as Al Smith or John Kennedy could be solidly American leaders.  Democracy depends on the principle that all citizens are treated equally by the government and that all citizens, in their legal interactions with each other, treat their fellow-citizens without discrimination against legally protected groups.

It is thus vital that all Americans recognize the principles behind the Court’s decision.  The Court ruled that the government (in the person of the CCRC) did not treat the owners of Masterpiece Cake Shop equally with others, by showing strong prejudice against anti-gay views.  Moreover, at the time of their refusal to serve them, gays seeking marriage were not a group with legal protection under state or federal law.

But the Court emphatically and explicitly stated that it was NOT ruling that citizens can discriminate against their fellow citizens on the basis of their religious beliefs, and particularly noted that since United States vs. Windsor, gay couples seeking marriage are legally of the same standing as heterosexual couples.

It is therefore vital that this court decision be properly understood.  If the popular mis-understandings are allowed to spread and take root, we will have a flood of discriminatory actions that will tie up our courts for years.  Worse, we will have an outpouring of religious prejudice and discrimination that will damage our democracy for a generation.





About jackgoldstone

Hazel Professor of Public Policy at George Mason University
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