A Victory for Tolerance


Last week’s U.S. Supreme Court ruling in favor of a Colorado baker who refused to do a cake for a same-sex wedding was hardly the major setback for civil rights that some commentators are portraying it to be.

Instead, by deliberately issuing a limited opinion addressing this one specific case, Justice Anthony Kennedy and the six justices who made up the majority made clear that the gains made in recent years aren’t about to be rolled back.

Kennedy’s language is forceful and direct:

“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights.” 

Where the majority found fault was not in protection for gay rights but in the actions of the Colorado Civil Rights Commission. The court cited statements by members of the commission that appeared hostile to Christian teachings on marriage and that criticized Jack Phillips, the baker in question, for his views on the issue at hand.

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Because the commission did not treat the case in an evenhanded way, Kennedy wrote, its findings in favor of the same-sex couple that wanted Phillips to make their cake must be overturned.

He hastened to add that his ruling was far from the last word on the matter.

“The outcome of cases like this in other circumstances must await further elaboration in the courts,” the majority opinion says, “all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Such nuanced language should be heartening to both sides of an issue that too often falls victim to hardened, us-versus-them rhetoric. Those who favor same-sex marriage, and those who feel that religious beliefs should be able to trump anti-discrimination laws, can each find something to like – and something to dislike – in the ruling.

Jewish reaction was mixed. Two of the court’s Jewish justices, Elena Kagan and Stephen Breyer, sided with the majority, while Ruth Bader Ginsburg, along with Sonia Sotomayor, filed dissents. 

Similarly, the Anti-Defamation League, which had filed an amicus brief on the side of the same-sex couple, expressed disappointment with the outcome but satisfaction that the scope of the ruling was narrow. The Orthodox Union zeroed in on the part of the decision it likes, calling it “a clear message: that the demonization of religious beliefs — especially in policymaking — is constitutionally unacceptable.”

So the cause of rights for same-sex couples and others under the LGBTQ umbrella is likely to wind through the courts and legislatures for a long time to come, as specific cases hone the law in one direction or the other. 

But as other cases make their way through the system, Kennedy’s strong support for the basic principles at stake should remain the guiding light.