WASHINGTON — The U.S. Supreme Court affirmed the principle of religious freedom in its recent Masterpiece Cakeshop decision — but its narrow ruling in the case left unanswered the question of whether wedding vendors and other businesses can legally decline services for homosexuals and same-sex couples.
The high court’s 7-2 ruling June 4 in favor of Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, did not address the First Amendment free-speech issues that Phillips’ lawyers from Alliance Defending Freedom and others litigated while the case was pending. That question was left for the court to decide on another day.
Writing for the majority in striking down a ruling that Phillips must provide wedding cakes for same-sex ceremonies, Justice Anthony Kennedy chided the Colorado Civil Rights Commission for displaying a “clear and impermissible hostility” toward Phillips’ “sincere religious beliefs that motivated his objection” to baking a wedding cake for a same-sex couple in July 2012.
“No doubt, the free-speech issue will come back before the court. There are cases in the pipeline all across the country,” said Jonathan Scruggs, a senior counsel at Alliance Defending Freedom, the Christian public interest legal organization that represented Phillips.
Scruggs told the Register that the cases where plaintiffs are asserting their rights to free speech from being compelled to offer their talents and services for same-sex weddings include a florist in Washington state, a web designer in Colorado and a calligrapher in Arizona.
Said Scruggs, “I don’t see how anyone can dispute that a calligrapher writing a sign with a Bible verse is expression. Should that calligrapher be forced to write wedding vows supporting same-sex marriage?”
The Masterpiece decision may not have addressed the free-speech claims directly, but it puts states and federal regulators on notice that they cannot discriminate against a business owner’s religious beliefs, several legal analysts told the Register.
“The court strongly reaffirmed the free exercise of religion as a fundamental right, constitutionally enshrined, and I think that’s really important, especially with this cultural shift away from appreciation for and approval of one of the core founding values of our country,” said Joan Mannix, special counsel with the Thomas More Society.
In a prepared statement provided to the Register, Mark Rienzi, the president of Becket, a nonprofit law firm that represents religious-liberty cases, said the high court reminded Americans that the Constitution “requires us all to try and get along.”
Said Rienzi, “There is room enough in our society for a diversity of viewpoints, and that includes respecting religious beliefs, too. The decision is a strong message to governments across the country that they must respect — rather than punish — religious diversity on important issues.”
When the dispute arose in 2012, Phillips offered to sell the same-sex couple a premade cake or any other baked good in his shop. Instead, the couple stormed out of the shop and later filed a sexual-orientation-discrimination complaint with the Colorado Civil Rights Commission, even though same-sex “marriage” was not legal in Colorado at the time.
One Colorado commissioner who voted to order Philips to design custom wedding cakes for same-sex couples claimed that freedom of religion had been used to “justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust.”
“The neutral and respectful consideration to which Philips was entitled was compromised here,” said Justice Kennedy, a swing vote in many of the high court’s close decisions.
Earlier, he included a plea for tolerance and respect for religious beliefs that echoed the 2015 majority opinion he wrote in Obergefell v. Hodges, which recognized a constitutional right to same-sex “marriage.”
“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” Kennedy asserted in the landmark 2015 decision. “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths and to their own deep aspirations to continue the family structure they have long revered.”
More Guidance Needed
But in the consensus view of legal analysts, the Supreme Court’s Masterpiece decision failed to clarify how broadly First Amendment protections apply in cases involving the provision of services for same-sex wedding ceremonies.
“The court’s preference, I suspect, would be that people find ways to compromise and that people wouldn’t file lawsuits over this issue,” said Richard Garnett, a law professor and director of the Notre Dame Program on Church, State & Society at the University of Notre Dame.
Garnett told the Register that it’s one thing for the court to tell people to be nice to each other and treat religious views with respect; it’s another matter as to who should prevail in cases where civil rights for homosexuals and same-sex couples clash with freedom of speech, religious freedom and conscience rights.
“And I’m not sure the lower courts got that much guidance here,” Garnett said.
In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court essentially “kicked the can down the road,” said Gerard Bradley, a professor who teaches constitutional law at the University of Notre Dame.
“The precedent set here will not apply to many other cases, and perhaps to none,” Bradley told the Register. “The Supreme Court agreed to decide this case of its choice, but it turns out that they did not really know what to do — at least not yet — about redeeming the promise it made three years ago in the Obergefell same-sex ‘marriage’ decision, to make effective room for the decent and honorable beliefs of those who hold that marriage is between man and woman.”
Bradley added that “the fight for living space for those who believe in traditional marriage will go on for quite some time, and it is now as important as ever that people of goodwill do their part.”
While the court’s decision in Masterpiece is narrow in terms of its impact on free-speech claims, the ruling has “broader implications,” said Douglas Laycock, a professor at the University of Virginia School of Law who studies and writes on religious-liberty cases.
Laycock told the Register that plaintiffs in future cases “will have to do their homework and prepare their cases well” and be ready to disprove the “phony rationalizations” offered by regulators who decide cases where business owners with biblical beliefs are challenged under state public-accommodation laws.
Laycock, who filed an amicus brief in Phillips’ favor, also said the court’s Masterpiece decision is “huge” because if it had not sided with Philips, then the court would have undercut other religious-liberty claims made under state constitutions and state Religious Freedom Restoration Acts, as well as other legislative efforts to grant exemptions for religious objectors.
In cases without “smoking gun” expressions of hostility toward religion, as in the Masterpiece case, Laycock said religious objectors will need evidence of inconsistent treatment of other cases.
And in Masterpiece, the high court was also presented with evidence that the Colorado Civil Rights Commission had acted inconsistently in cases involving opponents of same-sex “marriage.” Kennedy wrote that the commission concluded “on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages.”
“The actions the commission did are actually fairly common, in that you often have situations where there is unequal enforcement, and laws are applied with favoritism,” said Scruggs of Alliance Defending Freedom, who added that the Masterpiece ruling establishes “a firm rule” that government agencies cannot legitimately demonstrate hostility toward religious objectors.
“They can’t be equating people of faith with racists, discriminators or slave owners. That type of bias is improper,” Scruggs said.
The distinction between unjust discrimination and religiously informed views on marriage that the high court recognized will be “very important moving forward,” said Emilie Kao, the director of the Heritage Foundation’s DeVos Center for Religion and Civil Society.
“We think the hostility shown by the state of Colorado toward a person like Jack Phillips because of his views on marriage shows the need for legislation, both in Congress and at the state level, to protect people who have the same beliefs about marriage as Jack Phillips,” Kao told the Register.
Scruggs added that the Masterpiece ruling, while narrow, was “necessary,” given the Colorado commission’s bias against religion.
“It’s a significant win for people of faith everywhere,” Scruggs said. “The government can’t single them out and target their beliefs, especially in the context of marriage. People of faith who have biblical beliefs about marriage can’t be dismissed and excluded from the marketplace simply because of those beliefs.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.