Masterpiece Cakeshop – What the Supreme Court Did and Did Not Decide

Larry Nathenson

On June 4, 2018, the U.S. Supreme Court delivered its long-awaited decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, its first significant LGBT rights decision since it ruled that same-sex marriage must be legal nationwide in 2015. This new decision has resulted in considerable confusion and uncertainty, among lawyers as well as the general public. On June 14, I participated in a telephone conference sponsored by the LGBT Bar Association of LA County, and I would now like to share my thoughts with the BCC community.

In 2012 Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, Colorado, to buy a wedding cake for their reception (as same-sex marriage was not yet legal in Colorado, they were married in Massachusetts). Jack Phillips, the owner of the shop, told them he would not sell them a wedding cake because of his Christian beliefs, although they could purchase other baked goods. The couple did not discuss whether they wanted Phillips to design a cake for them. Craig and Mullins filed a complaint with the Colorado Civil Rights Commission under the state’s law prohibiting discrimination on the basis of sexual orientation by businesses open to the general public. The Commission ruled in their favor, and they prevailed on appeal in the Colorado courts as well.

In the U.S. Supreme Court, Phillips argued that he was entitled to an exemption from the anti-discrimination law because compelling him to make a wedding cake for a same-sex couple violated his constitutional rights under the “free speech” and “free exercise of religion” clauses of the First Amendment. He argued that he had a sincere religious objection to same-sex marriage, and that compelling him to make a cake celebrating such a marriage was in effect compelled speech (even though the parties did not actually discuss what would be on the cake).

The U.S. Supreme Court, in a decision by Justice Anthony Kennedy, reversed and sent the case back to Colorado, but on a very narrow ground. It did not rule on the religion or speech arguments, even though both parties had briefed them and argued them orally. Instead, the Court latched onto some comments by members of the Civil Rights Commission who said that religion had been used in the past to justify such evils as slavery and the Holocaust, even though the parties did not argue those points before the Court. In effect, Justice Kennedy ruled that the Commission was not neutral in its application of the law because it exhibited bias toward religion that might have affected its decision on the claim.

Though he was appointed by President Reagan and is considered a conservative justice, Kennedy has boldly authored all of the Supreme Court’s previous gay rights decisions over the last 22 years, overturning a statewide ban on local gay rights ordinances (Romer v. Evans, 1996), all the remaining sodomy laws (Lawrence v. Texas, 2003), the federal Defense of Marriage Act (U.S. v. Windsor, 2013), California’s Proposition 8 (Hollingsworth v. Perry, 2013), and all remaining same-sex marriage bans (Obergefell v. Hodges, 2015). So it was somewhat surprising that he ducked the main issues this time. However, Kennedy has also been a strong supporter of religious rights in previous cases, and this was the first one in which the two issues directly clashed. Some legal observers believe his narrow ruling followed from his belief that religious individuals must also be respected in all legal proceedings and that Phillips was subjected in this case to the same sort of “animus” that LGBTs have suffered in the past.

Strangely, only two of the Court’s liberal justices (Ruth Ginsburg and Sonia Sotomayor) dissented in this case while the others (Stephen Breyer and Elena Kagan) concurred. Some observers think they may have done so in an effort to limit and soften the opinion. Whatever their reasons, the decision leaves the issues of whether making a cake constitutes “speech” or the “exercise of religion” for another case at a later date, when Justice Kennedy will no longer be on the Court — he has just announced that he will retire this summer.

Both sides likely viewed this decision as unsatisfying, since it did not vindicate either of their positions. However, on a positive note, the decision did reaffirm that LGBT individuals and same-sex couples are entitled to dignity, respect, and equal treatment under the law and that the stigma of being denied service is significant, even for just a cake. It also reaffirmed that religious belief does not provide a blanket exemption from general laws that apply to all businesses. It was not a victory for LGBT rights, but it wasn’t a major setback either.

The Jews of Greece: A Long and Varied Story

Larry Nathenson

From May 14 to 30 this year, I traveled to Greece for the first time with Toto Tours, a tour company designed for gay men. While most of the tour focused on the archeology and natural beauty of the country, and included visits to Greek Orthodox monasteries, I added my own Jewish twist.

In the Plaka, the oldest neighborhood of Athens in the shadow of the Acropolis, there is a small but comprehensive Jewish Museum of Greece. The museum includes exhibits on the various Jewish communities that have lived in Greece for the past two millennia, describing their origins, communal life, religious practice, and interactions with their gentile neighbors. There is also a Jewish museum in Thessaloniki (Salonica), Greece’s second-largest city, but it was closed on the day I was in that city.

The earliest known Jewish settlements in Greece were during the Roman period, when most of their neighbors were still pagan. After the conversion to Christianity life became more difficult for Jews in the Greek-speaking Byzantine (Eastern Roman) Empire, and many Jews emigrated or converted. But the population was reinvigorated during the period when Greece was ruled by the Muslim Ottoman Turks, who allowed Jews fleeing the expulsion from Spain to settle there. Beginning after 1492, Salonica in northern Greece was a major center for Ladino-speaking Sephardic Jews, second only to Constantinople (now Istanbul, Turkey). In the 19th and early 20th centuries Jews were more than half the city’s population. Other Sephardic centers included the cities of Kavala and Larissa, the island of Rhodes, and later Athens in the modern Greek state. Jews from Italy also settled some of the Greek islands while under Venetian rule, including Corfu and Crete.

The Jewish communities of Greece were decimated during World War II, when nearly all were deported to Auschwitz. We tend to think of the victims of the Holocaust as Ashkenazi Jews, and most were, but Greek Jews were an exception. Some survivors moved to Israel after the war, and only about 8,000 Jews live in Greece today, about 10% of the prewar population.

The Jewish museum in Athens includes several exhibits about the Holocaust, including testimonies of children who were hidden by Christian neighbors (photo below). There is also a copy of a letter sent by Greek Orthodox bishops to the Nazi occupation authorities protesting the deportation of Jews, something not done by Christian leaders in other European countries.

In Ioannina, a city in western Greece, I visited the old fortress in the center of the town, and found this plaque memorializing the deportation of the city’s Jews on March 25, 1944.

On the island of Corfu, where a small community remains, the synagogue has the Italian style of seating with congregants facing one another, the ark at one end and the bimah at the other (as opposed to the Sephardic style with the bimah in the center).

It is sad that such a vibrant and long-lasting Jewish community has largely disappeared, but the small remnant is trying valiantly to keep their traditions and memories alive.

For more photos and descriptions of my trip to Greece, go to
https://larrystravel.wordpress.com/2018/06/01/greece-2018/

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