Religious liberty gets boost from Gorsuch in Masterpiece Cakeshop
In one of the most anticipated decisions of this term, the U.S. Supreme Court handed down a narrow ruling in the case of Masterpiece Cakeshop vs. Colorado Civil Rights Commission. Justice Kennedy delivered the opinion of the court. He was joined by Chief Justice Roberts, the rest of the center-right Justices and most notably, liberal Justices Stephen Breyer and Elena Kagan. The 7-2 decision sided with Masterpiece, holding that the Commission’s actions violated the Free Exercise Clause.
This case began in 2012 when David Mullins and Charlie Craig, a same-sex couple, ventured into Masterpiece Cakeshop in Lakewood, Colorado to order a wedding cake. Owner and baker, Jack Phillips politely declined to use his time and talents to craft a cake for their reception, as doing so would go against his deeply held religious convictions. Similarly, he had declined to make cakes that celebrate Halloween, bachelor parties and even divorce in the past due to his orthodox ideals. Mr. Phillips offered to sell the couple a variety of other baked goods such as cupcakes and cookies, but they weren’t satisfied and left.
Shortly thereafter, the couple filed a formal complaint with the Colorado Civil Rights Commission on the grounds that Mr. Phillip’s broke Colorado's anti-discrimination in public accommodation statute, which outlaws the denial of any good or service to an individual on the basis of sexual orientation.
Scholars, pundits and analysts alike anticipated the possibility of a sweeping decision on religious liberty that would set a precedent for future cases. But this was a narrow decision as the Court decided this case based on the Commission's open hostility towards Mr. Phillips’s faith.
One commissioner claimed during the hearing that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust.” Justice Kennedy said such "sentiment is inappropriate for a commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law.”
While many focused on Justice Kennedy’s opinion, some found deep hope for the future of religious liberty in the words of Justice Neil Gorsuch's concurrence. Gorsuch boldly showed his colors as the originalist many predicted him to be.
The founders purposely placed the Free Exercise clause in the First Amendment as a reinforcement that citizens in America would not be persecuted for exercising their religion. They knew that many colonists fled from Europe’s tyrannical governments due to their prejudices against certain faiths. The words in the Free Exercise Clause, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”, make clear that both beliefs and actions made on the basis of religion are to be protected.
Justice Gorsuch understands this, which is why in his concurrence he emphasized that “[t]he Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.”
He went on to say that, “Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.” He concluded that “[t]he only reason the Commission seemed to supply for its discrimination was that it found Mr. Phillips’s religious beliefs 'offensive.' That kind of judgmental dismissal of a sincerely held religious belief is, of course, antithetical to the First Amendment and cannot begin to satisfy strict scrutiny.” Gorsuch’s comments exemplify as well as champion his jurisprudence of original intent.
While this was an important win against an intolerant government body, there remain a plethora of valid questions that are largely unanswered. For example, in oral arguments Justice Sotomayor asked, “So how about disability; I'm not going to serve cakes to two disabled people because God makes perfect creations, and there are some religions who believe that?” Similarly, can an African-American sculptor decline to make a cross for a Klan member? Or imagine the implications of a ruling forcing Beyonce to perform at Donald Trump’s inauguration simply because she sang the National Anthem at President Obama’s.
Will the Court venture into the minefield of compelled speech or will it expand upon the Masterpiece Cakeshop decision by furthering business owners' freedoms of religion and conscience?
Tolerance of different or unpopular viewpoints is a shrinking commodity in American society. During oral argument in this case, Justice Kennedy, a powerful advocate for the LGBT community as well as for the protection of free speech, emphasized that “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual.” So let's show some tolerance, and, hopefully, we’ll be able to have our cake and eat it too.
Note: J. Grace Shannon is a contributor at the Committee for Justice (CFJ) and is an intern for Rep. Marsha Blackburn's (R-TN) campaign for Senate. Please note that views expressed on this blog do not necessarily reflect the views of her employer.