"Justice Samuel Alito" by Supreme Court / Public Domain

Justice Alito pens a bizarre love letter to Christian right

Jan 29, 2019

By Ian Millhiser

One of the Christian right’s top policy priorities is to effectively create two different codes of law in the United States. The first code, which applies to people who do not hold conservative religious views, is rigid and unmoving. The second code, which would apply primarily to Christian-identified conservatives, contains broad exceptions for people who hold the right religious beliefs.

The endgame is a world where Christian conservatives can treat much of the law as optional — applicable only to people who are not like them. Think of the Supreme Court’s recent decision in Masterpiece Cakeshop v. Colorado Civil Rights Commissionwhere an anti-gay business owner claimed that he could refuse to follow his state’s civil rights laws because his religion taught him not to serve same-sex couples at their weddings.

The four most conservative members of the Supreme Court signaled on Tuesday that they are itching to turn this agenda into law. Indeed, Justice Samuel Alito’s opinion in Kennedy v. Bremerton School District suggests that the Court’s right flank would give conservative Christians such broad immunity from the rules that govern all other Americans that it is unclear that the government would be allowed to manage its own workforce — at least when some members of that workforce identify with the Christian right.

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30 comments on “Justice Alito pens a bizarre love letter to Christian right

  • The author incorrectly claims that Jack Phillips (owner of Masterpiece Cakeshop) “claimed that he could refuse to follow his state’s civil rights laws because his religion taught him not to serve same-sex couples at their weddings.”  Fact is, he did not violate Colorado’s civil rights laws.  He did not deny service because the customers were gay.  He denied service only because the requested service entailed making a cake celebrating same sex marriage.  The charge against him was bogus.   It’s as illogical as claiming that the refusal to make a cake celebrating abortion constitutes unlawful discrimination against women.

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  • Frank

    Seriously? Comparing abortion under stress to a marriage?


    So a Christian only bakers? How about a cake celebrating Diwali?

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  • Olgun,

    Yes, we are talking about the law.  And from a legal standpoint there is no difference between a cake celebrating same sex marriage and one celebrating abortion (or Diwali).  It is not unlawful for a baker to decline making any of those.

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  • Nothing in that link says that it’s unlawful to refuse to make cakes celebrating same sex marriage, or abortion, or any other message the baker objects to.

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  • Frank


    Just seen an advert for a film where a dog goes on a rampage killing his masters murderers. The difference is that he is blowing them up and shooting them. One scene has the cops arrive and the dog sitting in the middle of several dead men he killed. One of the cops is seen looking through a book and then saying “well there is no law in here that says a dog can’t shoot a man”. Never mind the dangerous dog laws yeh?

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  • Poor wording on my part.  I should have said: Nothing in that link leads to the conclusion that it would be unlawful to refuse to make cakes celebrating same sex marriage, or abortion, or any other message the baker objects to.

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  • Frank


    In the case of the chemists, they can refuse on moral grounds but must pass the person on to another, who has no moral objections, in the shop. It preserves the right of the individual but no business can outright refuse on grounds of discrimination. Perhaps appartite with Christian only counter. You seem to be suggesting a loop hole rather than a fair undiscriminating moral service.

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  • Olgun

    According to that article, the pharmacist did not violate Arizona state law – he only violated Walgreen’s policy for its stores.  In any event the author cautions right at the beginning of the article. “The answer is not clear cut. It depends on a number of factors, . . .”    Which means that even if the pharmacist had violated Arizona law, you couldn’t simply jump from a pharmacy in Arizona to a cake-maker in Colorado,  and expect the same answer. 

    According to the Colorado Civil Rights Commission,  ““Unlawful discrimination” means that which is primarily based on the Charging Party’s asserted protected group or status.”  The “charging party” was Craig and Mullins. Their “asserted protected group or status” was homosexual. The decision by Jack Phillips to deny service was not based on the fact that they were homosexual.  Therefore, his refusal to make the cake does not fit the definition of “unlawful discrimination” in the state of Colorado.

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  • Frank.

    I agree. The link shows the differences and I am asking if it is right? You may have found the legal loop hole but do you also support the the act?

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  • I wish I could rid myself of the sense that all these baker-vs-gay-marriage cases have been completely and utterly staged. They all feel phoney to me. Christian baker makes a Big Deal out of not approving of gay marriage. Gay partners make a Big Deal out of a baker refusing to decorate their wedding cake. These all strike me as show trials, somehow: the only reason they make it to court in the first place, rather than a pragmatic resolution being sought, is that both sides WANT to make a big deal out of a CAKE.

    Personally, I am cynical about the whole institution of marriage (and all the associated trivia of the wedding day itself frankly drives me up the wall). So I’m out of sympathy from the start.

    That said, I am wholeheartedly in favour of gay people being treated the same as straight people and I think any baker who refuses to decorate a wedding cake for a gay couple is a shit. In an ideal world, this simply wouldn’t be an issue.

    But given that a baker doesn’t wish to decorate such a cake, what has the gay couple really lost? A supplier who begrudged them their wedding day. And who would therefore almost certainly not apply their full professional talent to the job. If I wanted a cake decorated and a baker told me he didn’t approve of the cause and therefore didn’t want to take it on, I’d soon come to the conclusion that he’d done me a favour. If someone doesn’t actively want my commission, then I would much prefer them to refuse it – it’s actively in my interests that they refuse it. Most towns have multiple bakers; and there are usually plenty of freelance cake bakers and decorators too. I don’t for one moment believe the baker’s refusal meant the couple would not have been able to get their cake elsewhere, from someone with more enlightened attitudes.

    The point Frank is making is simply one of law: you can’t refuse to serve someone just because they’re gay, but the law doesn’t go so far as to insist you actively contribute to something you don’t approve of. Had the baker refused to sell the couple a loaf of bread, that would clearly be discrimination under the law. But that’s not what happened in any of these cases. The refusal was simply to provide a cake to form part of a ceremony of which the baker disapproved. The law now – rightly in my view – permits gay marriage; but it doesn’t require everyone to approve of it or to join in the celebrations.

    Should anyone be forced to sell their conscience? To have their conscience reduced to a mere transaction between supplier and customer? I don’t believe in marriage, but given that I’m in the minority on that, I’m as happy for gay people to make a prison for themselves as I am for straight people to do so – so if I were a baker, I’d have absolutely no problem supplying the decorated cake for a gay wedding.

    But if I now imagine I’m a baker who’s been asked to supply a decorated cake celebrating something I really do have strong feelings about … suppose I’d been asked to supply a MAGA cake, for instance, in the shape of Trump’s stupid baseball cap, for a Republican rally. I would not do it. Not for anything would I do it. I wouldn’t supply services of any kind to the Republican party.  Closer to the real world, would I help my local Leave group produce an anti-EU leaflet? Of course I wouldn’t. I’m very choosy about the projects I take on.

    So while I’m completely out of sympathy with all these various bakers’ scruples, I’m uneasy about these cases. To be honest, I’m uneasy about my own stance expressed here too: I can see how it could be challenged. I just find the whole cake issue irritating – a proxy war for a battle that’s already been won, with the rightful victors now demanding that the losers like it.

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  • Olgun,

    I support the Colorado law as written.  It protects gays from being denied service because they are gay.  But it does not give anyone a special right to compel a baker to make a cake celebrating something he disagrees with.  That’s not a “loop hole”.  A baker cannot be forced to make a cake celebrating Christian ideology.  So why should a baker be compelled by law to make a cake celebrating same sex marriage?

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  • Marco, Frank


    Yes I think it should just be a business transaction. Within the law of course but some laws deserve to be challenged. Heading into the future with internet shopping, I really do not want to see a compulsory box(s) to tick of your gender, orientation or religion until you can carry on with your purchase.



    My fear/worry (and maybe why the gay couple made such a big deal out of it) comes from years of hearing low level prejudices, in the flats I worked in and have talked about before, and feared where it would go if the mood of the U.K. shifted just a little bit. Now Brexit it playing out for me. Early days yet but Englishness is now a badge of honour amounts the lower classes, mainly. It is now ok for people to look down their noses at me while I sit talking Turkish to my dad at Costa’s. I haven’t felt that for a long time. Still a minority I have to say. Prejudicism has to be killed at the roots. If the law says it can happen then that law is wrong. We need to rid it from our culture.

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  • 16
    Michael 100 says:

    I agree with Olgun. I think the issue in these cases has to do with public accommodation laws. If someone opens the door to serve the public, then the public must be served in a non discriminatory fashion. These laws were first passed to protect racial minorities. As time went on, the laws were expanded to protect others, and the laws are stronger in some states than in others.  I have to admire people who refuse to be intimidated by bigots hiding behind religion or patriotism.  If the cake baker wants to pick and choose his worthy customers, the law says he should find another line of work and pay a heavy price for his irrational convictions. The law will decide whether or not the case has merit.  There are plenty of safeguards to weed out so-called frivolous cases.

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  • I’m utterly with Michael here. Businesses aren’t people. They are, or should be, viewed (and increasingly literally) as machines to provide services. Nor is it healthy to confer businesses rights as if they were people with free speech rights and an ability to partake in some political processes. A total denial of service is the effective outcome in small towns very often with an uncooperative proprietor.

    My proposal has been that businesses must explain, visibly, the work that they must turn away in certain pre-defined categories. A stance against accepting say printing work from specific political parties, must be visibly pre-excluded, so other potential customers can make informed choices to buy goods or sevices from them given their stance. Prosecutions against the business will not be entertained if the exclusion is visibly displayed

    Such exclusions can be declared invalid if alternate services are not reasonably available within some formula.


    Bigotry, cannot be allowed to be surreptitious at the very least

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  • 18
    Michael 100 says:

    In the US state in which I live, it is illegal to discriminate on the basis of several classes in several areas of commerce, such as credit, employment, housing, public accommodation, or education. Protected classes include age, color, creed, familial status, gender identity, marital status, mental or physical disability, national origin, race, religion, sex, or sexual orientation.  The state created a Civil Rights Commission to enforce the protections.  I suspect that the case against the cake baker was brought by such a Commission in the state of Colorado.  

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  • Phil #17

    I can’t argue with any of that.


    Olgun #15

    It is now ok for people to look down their noses at me while I sit talking Turkish to my dad at Costa’s. 

    I do understand where you’re coming from, Olgun, and I think you know I watch the unfolding of the whole Brexit mess, including its associated racism and xenophobia, with unalloyed horror. I hope you know I despise homophobia just as much.

    But I wonder if you’re putting too much faith in the ability of laws to change people’s attitudes. Don’t get me wrong: laws definitely have a role to play, and major changes in attitudes probably can’t be achieved without them. But even with them, it’s a slow process: attitudes don’t change the day a law comes into force, they change gradually (and incompletely), often over a period of years, once the initial furore has died down and the once-controversial legislated situation has just become the norm. I do worry that high-profile court cases over wedding cakes simply prod the furore back into life, and prolong the time required for opponents to adjust to the new situation. Like picking a scab. The legal right to gay marriage and, since then in some places, for gays to adopt or even have their own children through IVF, are huge, momentous victories. I just think it would be wiser to let the after-shocks settle down a bit before taking homophobes to court over wedding cakes. It seems such a trivial battle in the context of such huge victories. And sometimes discretion really is the better part of valour.

    As for the people looking down their noses at you and your father talking together in Turkish in Costa: they’re ugly and despicable and stupid, of course. But utterly beyond the reach of legislation. You can’t legislate against ugliness and despicability and stupidity. You can’t legislate against people looking down their noses.

    UK laws against race hate haven’t changed since the Brexit vote: it is still just as illegal to discriminate against, refuse service to, stir up hate against, or be violent towards people on the basis of their race as it was before 23 June 2016. What’s changed is that, before the Brexit vote, there was a sense in society that those things were not socially acceptable: the mores were outwardly observed, and those who felt the hatred didn’t, on the whole, express it publicly but saved it for their own sitting-rooms, or down the pub with mates they were sure agreed with them. The result was that we all got the totally erroneous impression that Britain was a better, healthier place than it really was. One of the really shocking things about the Brexit aftermath, for me, is that it’s become clear that those laws didn’t stop the racism: they just pushed it underground, where it continued to fester out of sight – but now the racists feel vindicated by what they see as an anti-foreigner referendum result, all that vileness is coming to the surface again, with renewed energy driven by a sense of legitimisation. Look at how much Brexit policy and resistance to a people’s vote is being driven by fear of far-right thuggery.

    Is that an argument against legislating against race hate? Of course not. But it does show that legislation alone isn’t enough and we need to find other ways, too, of overcoming these social ills. I don’t pretend to have the answers, but continuing to fight high-profile battles over relatively trivial issues, battles that simply result in doubling-down in both camps, doesn’t strike me as the way to go. Maybe, alongside the legislation, we need to engage some emotional intelligence too. Choose our battles with care. And it can’t be left just to the lawyers on one side and the affected minorities on the other: I see racism and homophobia (and other horrors of a similar type) as a sign of real sickness in our societies, a sickness that needs to be tackled on every possible front. A society at peace with itself doesn’t just happen: it has to be created. And it’s created through education, appropriate social policies, opportunity, hope, social justice, funding, high quality public services, existential security and the messages given out by politicians and media. But I do think we little people have a role to play too: at some point, we’re going to have to start building a few bridges of our own.



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  • Marco #19


     I hope you know I despise homophobia just as much.


    Clear from the start.


    But I wonder if you’re putting too much faith in the ability of laws to change people’s attitudes.


    Not so much to change attitudes on its own but to empower the right people. Most racists I have met don’t know if they are racist or not. Too thick. They follow fashion and street cred. The first time the UK felt colder and wetter for me was when Cameron announced that the UK was a christian country. The crosses that never saw the light of day suddenly appeared around necks and dangling off rear view mirrors. People living in mixed areas who thought it cool not to “offend ” now “offend” with pride.



     It seems such a trivial battle in the context of such huge victories.

    Last week the Guardian published an article on the British agreeing to pay Greek Cypriots the sum of one million pounds for mistreating the “freedom fighters” during the 50’s, but not admitting any wrong doing of course. The article described the Turkish Cypriot police, under the British, as “Turkish Cypriot thugs”. After a few letters of complaint, the word “thugs” was removed. Ten years ago it was a British news paper describing Turks as barbarians and we got them to drop that as well and issue an apology. It may be because of this that I think these little battles are worth fighting because I think its as dangerous as the mentality that let Farrage have a platform because they thought people would see through him. If cases like this arise then that law is not sufficient and must be qualified. For that reason, I am not comfortable with Phils idea that businesses need only display their prejudice to see their downfall. It could go the other way couldn’t it and we end up with cantons of prejudice in full view?



    You can’t legislate against ugliness and despicability and stupidity.

    Before, they looked just like that to me but now they believe they have the right to do it. I can’t ignore them as just being a scab ready for picking but a festering infection waiting for its chance to grow. The state must back up its laws and lead by example. Passing laws for the sake of it gives me no confidence that the rest of the structure is able to support it, as a forina that is. BTW, it works on many levels. I went into an Indian wholesalers just before christmas. I was not made welcome and even the customers were uneasy with me. There has to be something wrong when you are accepted in law but rejected in a shop and that has negative effect on moral. You remember “Clunk Click Every Trip”? It needed a law and then follow up to succeed. For me, the wrong here is the refusal to make the cake based on a fantastical illusion and it should not be allowed to take away from the real situation.


    But I do think we little people have a role to play too: at some point, we’re going to have to start building a few bridges of our own



    My point is I suppose that when the law knows exactly what it is doing, the rest of us can get along and build bridges without worrying about it. 


    I agree with everything else you say. It is an illness but mainly of memes. No different than getting rid of smallpox (say) I suppose. treatment, inoculation and hit it where it hurts.




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  • 22
    Michael 100 says:

    Marco #19 :  “But I wonder if you’re putting too much faith in the ability of laws to change people’s attitudes.”

    Good point, but I think the function of law is to change behavior rather then attitude.  I can remember back in the early1960s when the civil rights movement was accused of moving too fast. Activists were told: “Go slower, and things will get better when attitudes improve — as they surely must.”  If the law had not forced a change in behavior, I think Jim Crow would still be the law of the land. As great a leader as Martin Luther King was, I think Thurgood Marshall accomplished equal or greater change by his influence on the law, both as a lawyer and as a justice.  As Olgun said in #20, it’s more about empowerment of the oppressed then the attitude of the oppressor. 

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  • Feminist strategists maintained that our best strategy would be to ram laws through that would be unpopular and considered radical at the time but then we would have a framework with which to take legal action against offenders in the real world. Without laws in place we could only complain and submit.

    Now, in countries and societies where there is egregious sexism with women and girls who lead lives of reproductive and domestic slavery, there is the greatest need for a strong legal framework to support their freedom. Then, let the public get used to the ideas and one court case at a time, the policy will become reality.

    The FGM case in England that was prosecuted just lately is an example of this. Laws in place but finally utilized. Now hopefully some consistency and legal enforcement will continue and the segment of the society that is involved in the behavior will decide that the “benefit” isn’t worth the risk.

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  • Michael #22

    Good point, but I think the function of law is to change behavior rather then attitude.

    I think that’s largely my point, really, Michael. The law can only address behaviour, not attitudes. Behaviour is the symptom of the problem, attitude the cause.

    As I tried to express in my comment (#19) about racist attitudes in the UK before and after the Brexit vote, outlawing the behaviour – necessary as that is – doesn’t resolve the underlying problem, which is the attitudes that lead to that behaviour. What if always pursuing every trivial breach of legally mandated behaviour via the courts actually results in a hardening of the underlying attitude? … actually helps to perpetuate the notion of ‘them and us’, of a real difference between gay and straight people? What if it unnecessarily energises the resistance to accepting that gays are just … normal?

    I’m happy for the law to be there, and there are plenty of cases where it is wholly justified to take legal action on the basis of it (if the baker had refused to serve the gay couple at all, for instance); but in my view it will serve the cause of gay acceptance better in the end if people don’t constantly drag other people to court in high-profile cases over every last trivial offence. I am categorically NOT suggesting that gay people shouldn’t ever seek legal redress for discrimination: just that in some of the cases we hear about, I suspect a sense of proportion has been lost. “Choose your battles” has always been wise advice, in my view.

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  • Olgun #20

    Just passing through quickly, so I just want to reply to this part of your comment:

    Before, they looked just like that to me but now they believe they have the right to do it. 

    You’re absolutely right: racists now believe they have the right to express their racism, and that is hideous. But the law hasn’t changed. If they act on their racism in the form of physical violence, or incitement to violence against you, or by hurling racist abuse at you, the law will still take your side, and rightly so. But there’s no law in the world that can prevent people’s thoughts, or stop them looking down their nose at you when you speak Turkish in Costa. Sometimes prosecution just isn’t the most effective answer.


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  • 26
    Michael 100 says:

    Marco #24 — yes, I think we are in agreement on this point.  I’ve been thinking about this dichotomy between behavior and attitude a lot since yesterday, and there was a story on the radio this morning that illustrates what we’ve been talking about here.  This morning, on National Public Radio, Don Gonyea reported from the suburbs of Denver Colorado, about Republican and independent voters’ attitudes regarding Trump’s ongoing call for a border wall.  Toward the end, Gonyea spoke to a Republican woman who couldn’t understand why her attitudes are offensive.  She said: “A large part of the reason we’re defensive is the media, I mean as we’re learning now if you wear a MEGA hat, that means you are a racist” or are labeled sexist or homophobic or misogynistic.  “No, we’re not, but it puts us on the defense because we’re being attacked daily on our beliefs.  Just because we associate with a candidate or just because we associate with an issue, doesn’t mean we’re racist or something.  Maybe we just have another way of looking at something.”
    I suspect that if Gonyea had probed a little further, the lady would have revealed that her beliefs – her “another way of looking at something” – are based on irrational prejudices for which she finds support in the bible.

    The story can be heard at https://www.npr.org/2019/02/04/691221592/colorado-voters-weigh-in-on-trumps-insistence-of-a-border-wall         


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  • Marco #25


    Its not that I am disagreeing with your approach. As a group of volunteers with limited time, my group can not afford to chase everything but individual action has a positive effect of showing something can be done and gives people hope to join groups or act on their own but know support is there. I understand that some take it too far and that is the worry but the feminists have had their waves so maybe each group has to go through the same? We seem to have different strategies but the same aim. That can’t be bad.

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