It’s Not Freedom if You Can’t Exercise It, Pt. 2   Leave a comment

I like to believe that nothing really shocks me anymore, but that Elena Kagan concurred with the majority in the Masterpiece Cake case surprises me. I’m even somewhat surprised that Justice Breyer joined in her concurrence.


“It is a general rule that (religious and philosophical) objects do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law” … unless state actors show hostility toward religious views, which the Colorado Civil Rights Commission did.

Image result for masterpiece cakeshopKagan noted the came of William Jack, who sought cakes with images that conveyed dispproval of same-sex marriage, along with religious text. Bakers refused to make them and their refusal was upheld by the Colorado Civil Rights Commission. In the case of Jack Phillips the Commission deemed his beliefs to be offensive, but a “principled rationale for the difference in treatment cannot be based on the government’s own assessment of offensiveness.”

Kagan found that the proper basis for distinguishing the cases was obvious. “The Colorado Anti-Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny ‘the full and equal enjoyment’ of goods and services to individuals based on certain characteristics, including sexual orientation and creed.” The three bakers in the Jack case would not have made a cake denigrating gay people no matter who requested it. Mr. Jack was not signaled out. Phillips did refuse the bake the cake for the gay couple because of their sexual orientation. Kagan reasoned that a plain reading of the Colorado law would have allowed the Commission to rule against Phillips on that basis, but they didn’t avail themselves of that option.

Okay, Kagan is a statist who is fine with using government to force people to violate their beliefs so long as government doesn’t show its underwear in the process.

Justice Gorsuch has a different view and we’ll get to that in a moment.

Offensive is in the eye of the beholder and forcing someone to compromise their religious beliefs curtails their freedom of conscience. Why is that somehow something we think is a good idea?

Under this argument, you could arrive that the idea that a black hip hop cover artist is required to sing Slim Shady songs for a bunch of skinheads unless the government fails to correctly cite its own law requiring that. Is the proper citing of the law somehow magic? Does it turn that which is sin into something that doesn’t mar the soul of the participant?


Because freedom of conscience is probably the most fundamental right we have. It is the right to be us and to have the fruits of our creativity to reflect what we want them to reflect and not what others demand we respect. And it’s not freedom if you’re afraid to exercise it.

Part 3

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