Five years ago, the U.S. Supreme Court heard oral arguments in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a Christian baker in Colorado was being prosecuted for refusing to make a wedding cake for a same-sex wedding. Coincidentally, I was defending a nearly identical case in California: California Department of Fair Employment & Housing v. Tastries Bakery.
At the time, the swing vote on the Supreme Court was Justice Anthony Kennedy — the author of every major gay-rights case — so many were concerned about how he would vote. But the oral argument gave cause for optimism. First, Justice Kennedy was visibly upset and rebuked Colorado’s attorney, stating: “Counselor, tolerance is essential in a free society, and tolerance is most meaningful when it’s mutual. It seems to me that the State in its position here has been neither tolerant nor respectful of Mr. Phillips’ [the baker’s] religious beliefs … because accommodation is quite possible—we assume there were other shops, other good bakery shops that were available.”
Second, the late Justice Ruth Bader Ginsburg had asked a question: If the baker would be willing to write on a wedding cake, “God bless the union of Ruth and Marty,” would he have to do the same for a same-sex couple? The ACLU attorney representing the complaining gay couple responded yes: “if he would say that, then he would have to say ‘God bless the union of Dave and Craig,’ because the only difference between those two cakes, Your Honor, is the identity of the customer who is seeking to purchase it.”
After the ACLU attorney said this, there was a stunned and palpable silence in the courtroom. Clearly, whereas simply baking a cake might be considered “expressive speech,” to compel the baker to inscribe the cake with language that offends his conscience violates the principle of “pure speech” that is protected under the First Amendment. The attorneys representing California in the Tastries case immediately sought a temporary restraining order against Tastries Bakery. It appears they saw the writing on the wall and hoped to quickly obtain a favorable ruling from the California trial court before the U.S. Supreme Court ruled in favor of the baker in Masterpiece.
But like many times before, people of faith would not get the complete win at the Supreme Court. The court authored a favorable opinion for Jack Phillips, but it did not reach the important constitutional issues that would have a broad general application.
In the past few years, things have begun to change. Twenty years ago, it seemed that California was already too far gone—and that the land of St. Junipero Serra and the missions had long since been supplanted by extreme liberalism. But across the nation, there seems to be a new dawn for life and religious liberty, led by a more conservative Supreme Court that more fully appreciates that tolerance is a two-way street.
Last term, the Supreme Court finally repudiated its unconstitutional and disastrous abortion decision of Roe v. Wade. Moreover, in Kennedy v. Bremerton School District, the Court affirmed the right of a public high school football coach to exercise his freedom of speech and religion to pray openly at a high school football game. Such rulings directly influence law and policy, but they also indirectly influence our culture and public morality.
By the grace of God, on October 20, the California court rendered a very favorable decision in the Tastries Bakery case, upholding the constitutional rights of the devout Christian baker.
This Christmas season, pray for the justices on the Supreme Court—and all judges everywhere—that they continue to recognize the importance of religious liberty.
CHARLES LIMANDRI, ESQ., a board-certified trial attorney licensed to practice in California, New York, Washington, D.C., and before the U.S. Supreme Court, is a partner in the law firm LiMandri & Jonna based in Rancho Santa Fe, CA, which serves as special counsel for the Thomas More Society. He is a past president of the San Diego Chapter of Legatus and a former member of Legatus’ board of governors.