As this U.S. Supreme Court term winds down, we reflect on one of its signature decisions, the Masterpiece Bakeshop case. The facts of this case and those similar to it have been debated since the legalization of same-sex marriage in Obergefell v. Hodges. The threshold question has been, how will same-sex marriage impact the rights of religious objectors? Suits have been brought and filed against religious small business owners such as bakeshops, florists and photographers. While the outcome of Masterpiece Bakeshop was a victory for religion and proof that it justifiably maintains Constitutional protections, the decision and reasoning used in the majority opinion approached the matter from a narrow perspective. In my personal opinion, Justice Thomas’ concurring opinion (joined by Justice Gorsuch) presented a stronger method of legal reasoning, freedom of expression.

With regards to the majority opinion, Justice Anthony Kennedy focused on the issue of the Colorado Civil Rights Commission adjudicating the complaint against Masterpiece Bakeshop with an animus towards religion. The public record reflected unjust bias against matters of faith and most specifically the bakeshop owner, Jack Phillips, with unfair commentary by the commissioners which in turn called into question the fairness of the proceeding. The majority opinion relied on discussing the State’s duty under the First Amendment to not base laws or regulations on hostility towards religion or a religious viewpoint. This opinion provided acceptable Constitutional reasoning, but it would have been stronger if it had focused on reinforcing the importance of Jack Phillips’ constitutional right to freedom of expression.

Justice Thomas argued in his concurrence that “states cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.”  He cited Texas v. Johnson that provided, “if there is a bedrock principle underlying the First Amendment it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.” He warns that this sets a dangerous precedent for state actors and government to stomp out any forms of expression that it deems not in line with the mainstream. This is a very dangerous path that the United States must not undertake and is a major issue that the Constitution was meant to defend against.

Finally, the last paragraph of Justice Thomas’s opinion provides an excellent summary that recognized the warranted fears for religion that emerged after Obergefell. Justice Thomas stated:

“In Obergefell, I warned that the Court’s decision would inevitably come into conflict with religious liberty, as individuals are confronted with demands to participate in and endorse civil marriages between same sex couples. This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom for speech could be essential to preventing Obergefell from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new  orthodoxy.’ 576 U.S. at ____ (Alito, J., dissenting) (slip op., at 6). If that freedom is to    maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.”

This was a powerful statement by Justice Thomas and emphasized that his warning regarding the harmful threats to religion indeed have come to pass. Freedom of expression doctrine can largely mitigate the harmful threats towards religion.

It is commonly presented in opposition commentary that there should be bounds to freedom of expression, most notably in regards to religious objectors and that freedom of expression should not be used to expel or discriminate against people. Well one could argue that in these facts there is no such weaponization. Jack Phillips offered to make regular cakes and other products for the same sex couple. They were never denied service to his establishment, he just simply chose to not provide same sex wedding cakes as a featured product at the bakery. It did not matter if the couple sought to purchase the product or one of their mothers. There was no animus towards an individual entering the establishment based on their orientation. It was a conscious religious choice by Phillips to not produce the product. This is an essential fact with regards to the analysis and one that should be the subject of further commentary when adjudicating these cases.

Overall, Obergefell has had far reaching effects most notably in the context of religious freedom, Despite what mainstream commentary would lead one to believe, there still is strong sentiment in favor of respecting religious values in this nation. Religious liberty was a major factor in establishing this nation as evident in the early Protestant settlers that had fled England in response to religious persecution. The right to religious liberty and expression are core constitutional principles. While Masterpiece was a start in the right direction, there is still much work to be done and I argue it should have went further.

Maybe just maybe one day Justice Thomas’ brilliant concurrence will be central reasoning in a religious liberty majority opinion, time will tell……….

This weekend, Justice Clarence Thomas celebrated his 70^th birthday. As a nation, we should come to appreciate the great work he has done during his tenure on the U.S. Supreme Court. His consistent adherence to Constitutionalist values and principle makes him one of the greatest judges of the modern age.

When I was in high school and became actively interested in law, I always had a respect for Justice Thomas, mainly because he would serve as the late great Justice Scalia’s wing man of sorts in many notable Supreme Court decisions. I respected him, but did not truly appreciate his contributions and his role on the court until reading his memoir “My Grandfather’s Son”, which is one of the greatest books I have every read, and in law school when I dissected several of his opinions. In an interesting irony, although I was a great admirer of Justice Scalia and agreed with much of his legal reasoning and opinions, I often found myself being more persuaded by Justice Thomas’s analysis in his opinions. Both have gained my respect, but the consistent historical approach and strict originalism of Justice Thomas was an ever so slight deciding factor for me.

One of Justice Thomas’ greatest opinions in my view is his dissent in the notable marriage case, Obergefell v. Hodges. Putting aside the debate of the outcome of the case, I would like to draw attention to one of his lines in the opinion that speaks volumes about the role of judges and the direction of Constitutional law. He states, “by straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority.”  This is a similar argument used by another judge I admire, the late Robert Bork. As stated in prior posts, the flawed doctrine of substantive due process essentially provides a blank check to the judiciary to craft their own meaning to what should constitute due process. In many cases involving this doctrine, the decision of the judges takes away the voice of the people on various issues that were meant to be decided by states, such as marriage in this situation. However, we should also focus on the second half of the clause that emphasizes judges derive their authority from the people and in turn the Constitution that the people ratified. When flawed doctrines such as substantive due process replace the voice of democracy, this endangers Constitutional law. Justice Thomas has been consistent in championing this concept during his tenure on the court.

I am inspired by Justice Thomas’s brilliant legal mind through his opinions, but also in coming to understand the person of Justice Thomas by reading his book. This is a man that has dealt with adversity his entire life, but each time responded and triumphed despite the odds, lies and animosity demonstrated against him.

Growing up he was raised by his grandparents because of a difficult family situation. His grandparents installed strong values in him that he would later use to persevere through the darker stages of his later life. After leaving the seminary and entering college he was confronted with racism by other students and embraced activism. He still fought through it and became a top student, eventually making it to Yale Law school where he excelled.

During later stages of his life, however, he battled alcoholism and unhealthy relationships. Eventually after a lost phase, he began to drift back towards the moral center in which he was raised. He eventually became a federal judge and later a Supreme Court justice with gathering support of friends along the way.

However, his Supreme Court hearings were a true test, one that was among the most difficult with the slanderous testimony of Anita Hill in an attempt to sink his nomination, despite the work he did in mentoring her as a young attorney. The media ran with her fictious accounts, but fortunately failed to sink the nomination and he has become one of the greatest judges in the modern day. His experience however, was described as a “high-tech lynching.” However, the true assessment of champions is how they respond to the adversity confronting them. He persevered through his experience and was determined to not allow the distortion machine to run its course and cost him a seat on the Supreme Court.

Ultimately, these difficult experiences forged Justice Thomas into the powerful individual and ardent Constitutionalist he remains to this day. Instead of breaking down and recoiling in fear of the adverse treatment, he persevered and did not allow the outside noise to dictate who he was as a person.

This is an inspiring example and one that people should emulate whether they are a Constitutionalist, Living Constitutionalist or Conservative, Liberal. Happy 70^th Justice Thomas and may you continue to inspire.