In Masterpiece SCOTUS Ruling, The Same Questions Continue To Be Unanswered

Conservatives and evangelicals alike are celebrating the latest decision coming from the US Supreme Court this week, that of Masterpiece Cakeshop v Colorado Civil Rights Commission. The court ruled in favor of Masterpiece Cakeshop in what is generally being considered a “narrow” ruling. Read the opinion here. Given the 7-2 decision, the nomenclature can be seen as a bit misleading but the narrow decision seems to have more to do with the deciding factors of the opinion than the vote itself. Instead of basing the decision on the merits of the case itself and hence strengthening either side’s jurisprudence in the future, it instead focused on misconduct of certain members of the Commission itself.

Now, I won’t say that I am discouraged by the ruling: we can always appreciate positive outcomes in political situations, even if we might object to the ways or means that led to those outcomes. But, in my experience, this case and its ruling and that of so many others are routinely misunderstood, over or under emphasize the relevant factors in play, and continue negative trends and practices that have led to bad rulings and jurisprudence for decades or longer.

But if I could wave a wand and clear the errors of discussions that have surrounded the numerous same-sex marriage cases that have been in the spotlight for a number of years now, my points would be threefold:

First, that the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission has almost nothing fundamentally to do with religious freedom.

Similar cases and thought experiments have been discussed and debated ad nauseam for years now, often with the presumption that religious freedom for someone like a Christian baker or photographer and their faith is naturally the relevant issue at hand. This is an understandably easy jump to make given the appeal to first amendment speech and religious liberty protections that are almost second nature to Americans who value either. But though it is less common in parlance and political culture in the modern day, a far more fundamental principle is at play here that supersedes any specific attribute or activity; that of freedom of association.

Many libertarians who are familiar with their political theory understand that our natural rights stem primarily from self-ownership; that we own ourselves. (And, yes, I know, for Christians, this right is superseded by our giving up of that ownership and freedom to follow Christ. But, while relevant for theological discussions, the relevance to political discussions amongst otherwise equal human beings is negligible) That self-ownership can then extend over the things that we make and/or homestead (property) and our own productive activity (labor). But what about our relationship to other human beings? What about our right to decide whom our selves will associate with and to what end? This is freedom of association.

In cases like Masterpiece Cakeshop, where an individual claims to have been discriminated against based on a trait they possess or behavior they engage in, such as homosexuality or a same-sex marriage ceremony, the source or validity of that discrimination and the reasoning behind it is not of primary importance. Of primary importance are the rights of individuals. And if an individual also has the right to his or her property and labor, and by extension one’s industry, then it is that individual’s right to associate or do business with whomever they please. The ramifications are often thought unconscionable or untenable for those raised in 20th century America, that of a pervasive environment of non-discrimination laws and regulations. But the principles are clear, strong, and unwavering. An individual can associate with whomever they choose for whatever reason they choose, or rather, whomever also agrees to be associated with.

Second, from an originalist perspective, one that values and privileges the original design and intent of the Constitution based on the ratification thereof, the very fact that this case came to be heard by the Supreme Court from a prior state court is a foreign concept.

Of course, in today’s age, any deviation from the concept that the Supreme Court serves, indeed always has served, as the “highest court of the land” and acts as a sort of final appeals court for any case from any state would also be considered a foreign concept. But this was not always so. Prior to the first session of Congress, during the ratification debates, it was understood that the Supreme Court was to only take up cases related to federal law, not to preside over state laws or review their Constitutionality. This made sense, since the Constitution itself did not directly apply to state law, at least apart from those areas where powers had been delegated by the states. That understanding was fairly quickly brought into peril by the Judiciary Act of 1789, particularly Section 25. Brion McClanahan details the conflict much better than I ever could:

“Section 25 of the Judiciary Act allowed for direct appeal of state court decisions to the Supreme Court under a writ of error if a case could be made that the state law in question violated the United States Constitution. This section, more than any other provision of the bill, disrupted the nature of the Union. Proponents of the bill reasoned that it would only be used in extreme circumstances, but … eventually people would bypass the state courts by seeking relief in federal court for issues that were plainly outside of its jurisdiction. Section 25 established “federal supremacy” beyond the scope of the ratifiers’ promises in 1787 and 1788.”

Given this original intent, either potentiality could have its own positive and negative outcomes. Were the Supreme Court not allowed to take up State appeals, there may very well have been states that arrived at unjust decisions without possible further recourse or chance for appeal for its citizens. However, the result that absolutely has occurred is that, instead of those cases originating and concluding within the isolated state with no direct impact to the others, cases that do get appealed to the Supreme Court and are decided wrongly now potentially affect every state. This destruction of federalism is the very political phenomena that contributes to the very such ferocious partisanship and division we experience today.

Which leads us to the third point, that the concept that the Supreme Court can determine just what the law is or should be, for state or even federal law, is also itself counter to originalism.

That concept is generally known as “judicial review” and it entered the scene as part of the early court of John Marshall. Indeed, Marshall famously claimed that “the duty of the Judicial Department [is] to say what the law is.” But a great number of those present as drafters and ratifiers of the Constitution begged to differ. Thomas Jefferson, looking back on his time and experience with the Constitution stated that,

“The question [of] whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.”

An anonymous author, under the pseudonym “An Unlearned Layman”, writing in the Washington Federalist whilst ratification debates were underway, also gives a poignant review of such reasoning:

“If it had been intended to confer this pre-eminent power [judicial review] on the judiciary would not those great and wise men, who composed the convention, have given it by marked expression, as they have given to the President, the limited veto, and not left them to assume, as they now do, from interference, the unlimited?”

During the Philadelphia Convention of 1787, McClanahan writes that “very few delegates supported [judicial review] and most thought it was not one of the enumerated powers of the federal judiciary.” Ultimately, on the matter of just what the Supreme Court could and need do, he concludes, “Madison and other members of the founding generation thought that the Supreme Court, as an appellate court, could only invalidate the decisions of lower federal courts in relation to law and fact, meaning it did not have the ability to interpret the constitutionality of the law, only whether the party in question violated the law or was given a fair trial.”

We certainly find ourselves far from these humble beginnings today. And the fact that these points are rarely discussed amongst almost any of the prevailing political powers-and-parties-that-be shows how little we truly value those beginnings and the wisdom behind them. There is not much hope of ever returning to such a time or such a limited scope of power for the judiciary. The best that we can hope for is to educate ourselves and to seek to educate those around us to the best of our abilities.