Will SCOTUS Let Them Eat Cake?

Arguments at the United States Supreme Court for Same-Sex Marriage on April 28, 2015

The irony is almost as delicious as the confectionary “masterpieces” Jack Phillips bakes up as he prances about his delightful boutique patisserie. You see, Jack, a self-styled artiste de gateau, just loves being around weddings, what with all the darling arrangements and flowers and pageantry and lace; it’s all just so . . . breathtaking! That’s why Jack’s passion, his craft, his vocation, is to get all up into those nuptials as a veritable cake fairy. Jack is to wedding cakes what a composer is to a symphony – he’s a virtuoso of the vanilla bean; a spatula-wielding Maestro of Merveilleux! With Jack creaming your stack, you’re sure to adore a precious yummy swirly creation that’s nothing short of fabulous.

Oh, and did I mention that Jack hates gay people? (Bless his little self-loathing heart.)

Anyhoo, there’s quite a lot of gossip surrounding the Supreme Court’s recent decision to hear the case of the pushy queers who really pissed Jack, uhm, off. (They continue to insist that Jack abide a non-discrimination law that entitles them to gobble up all Jack’s buttery deliciousness unencumbered by his misplaced rage. Jack, on the other hand, says he is constitutionally religiously free to not know that contentment is possible for other gay people, and also that Jesus would never let them eat cake.) The Court has turned down cases like this before, but that was before Neil “Central Casting” Gorsuch pulled Merrick Garland’s chair out from under him – back when Gorsuch was still riding circuit, so to speak.

But with Gorsuch now firmly astride Samuel Alito, Clarence Thomas, and John Roberts, there’s a judicial four-way in the making. Gorsuch has shown limited versatility (ideologically, that is), leaving little question how he’ll come down on the gays, and that’s likely to be a tough nut to swallow. (Oh my, have I mixed my metaphors? Mercy me.) The man to watch – as usual, the one who could swing either way – is Justice Anthony Kennedy. Official Photograph of Justice Anthony Kennedy

A recent Court decision in a case called Trinity Lutheran gives Jack a knob to hang onto. In that case, the Court’s conservatives smacked down a Missouri law that stopped a church from using the state’s lucre to tar its playground, if you know what I mean. The church elders refused to submit, insisting that the bare backing of a black-top play space project was hardly an establishment of religion. The Court agreed, inviting worshipers to get down on their knees and use that newly laid playground for every manner of “free exercise,” praise be.

But the “good news” for Jack only stretches so far. Unless Kennedy is going to reach around all the precedents that he himself authored – opinions in which he gave his full-throated backing to gays and lesbians in matters ranging from same-sex intimacy to the bliss of marital consortium – he’s going to have to send Jack off sorely disappointed. Because without Kennedy, the aforementioned foursome can’t get over the hump. It takes five men in dresses to give gays the shaft, not four.

Under settled precedents, bigots don’t get to ignore generally applicable anti-bigotry laws just because some trans-dimensional master strapped their souls to a turgid cosmic codebook. This isn’t the Levitical Wild West, and the First Amendment is not an invitation to morph freedom to indulge one’s own repressive religious practices into freedom from the gaiety of souls unburdened by any bondage to pious dogmas.