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Supreme Court Decision On Rights Was Correct, But Half-Baked

Rule Of Law: The 7-to-2 ruling by the U.S. Supreme Court in favor of a Christian baker who refused to make a custom wedding cake for a same-sex wedding ceremony was a minor victory for religious rights, freedom of speech and freedom of commerce. But it didn't go far enough.

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Regardless how one feels about same-sex weddings, the idea that someone should or even could be forced to bake a cake to celebrate one — even if it violates the cake-maker's deeply-held religious beliefs — is wrong, and clearly protected by the Constitution.

After all, the baker in question, Jack Phillips of Masterpiece Cakeshop in Lakewood, Colo., didn't refuse to sell a cake, even a wedding cake, to the gay couple. He only refused to custom-bake one. While Colorado's current law forbids discrimination on grounds of gender or sexual orientation, requiring Phillips to use his cake-decorating talents in essence forces him to endorse something he morally opposes.

But the Colorado Civil Rights Commission ordered him to do it anyway, showing a blatantly anti-religious bias toward Phillips' beliefs in the process. And this bias turned out to be the most significant factor in the court's surprising 7-to-2 decision, with only Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor dissenting.

"As the record shows, some of the commissioners at the commission's formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips' faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust," Justice Anthony Kennedy wrote in his opinion for the seven-justice majority, which included liberal Justices Elena Kagan and Stephen Breyer.

But the decision leaves many open questions.

For one, it didn't decide in any meaningful way under what conditions a person's religious beliefs or other First Amendment rights could be used as a rationale for denying a public accommodation to a person or group.

The court narrowly decided that the commission showed bias in its handling of the case, but not that Phillips was within his rights to refuse to make the cake.

So perhaps the most important question of all remains unanswered. And it raises a new question: If the Colorado Civil Rights Commission (CCRC) issues another ruling free of any overt verbal bias, can it force the next religious baker to make a cake against his will?

More troubling, perhaps, is that this case was allowed to go anywhere at all.

Power Without Votes

To begin with, should an unelected group have power to order free citizens to do what it wants them to do? It's downright Orwellian.

How can a commission composed of unelected members deny people their constitutional rights? Especially given that the nation's highest court found the commission in this case was "neither tolerant nor respectful of (Phillips') religious beliefs"?

Giving such powers to largely unaccountable political appointees endangers all of us. That's especially true of small business owners, who can lose a business merely for exercising their First Amendment rights.

Even at the most basic, legal level, this case should never have happened. Phillips' refusal to sell the wedding cake took place in 2012. But same-sex marriage wasn't even legal in Colorado at that time. So, in essence, the commission was ordering Phillips to participate in breaking the law.

Moreover, the gay couple, David Mullins and Charlie Craig, could have easily found another baker to do the job. They chose litigation instead.

But even before litigation takes place, ad-hoc boards like the CCRC shouldn't have power to police legal behavior. It's rife with the possibility of undue political influence and petty authoritarianism.

As an example of this, the CCRC didn't just require Pillips to change his company's policies. It also required him to offer "comprehensive staff training" to his workers. At added cost, the CCRC also required the bakery to produce quarterly reports about how it handled its customers.

The goal isn't just to fix the problem, but to humiliate the perpetrator and make him a lesson to others.

Phony 'Bipartisanship'

Of course, the CCRC web site touts the makeup of the seven-member CCRC board as "bipartisan," a weasel word. That's a verbal smokescreen. A liberal Democratic governor appointed the 2012 board members, so there was no true ideological diversity among its members.

The current "bipartisan" lineup, for instance, features exactly one Republican. But it has two Democrats and two "unaffiliated" members. In addition, by rule, "At least four of the commissioners are members of groups who have been or might be discriminated against because of disability, race, creed, color, sex, national origin, sexual orientation, marital status, religion, or age."

So there's a built-in bias in the board's very composition toward finding discriminatory behavior. It's similar to requiring that a jury in a theft case primarily be made up of people who had themselves been theft victims. Would someone accused of theft in such a case have any chance at a fair trial?

This was a politicized case from the very beginning. And sadly, the Supreme Court's limited decision, while correct, doesn't resolve the underlying issues.

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