Readers will recall that last year, in the Masterpiece Cakeshop case, the U.S. Supreme Court held that Colorado violated the First Amendment rights of a Christian baker, Jack Phillips. He sells his pre-made goods to everyone, but would not create a custom cake for a gay wedding based on his sincere religious beliefs. The Court based its decision on the hostility to religion expressly stated by a State agency, which characterized his sincere beliefs as “despicable” like the Holocaust and slavery. The Court, in an opinion written by Justice Kennedy, a gay rights supporter who also wrote the majority opinion in the Obergefell case that legalized gay marriage in 2015, limited its holding to those egregious facts. So, the broader First Amendment legal issues about whether a government entity can ever force someone to participate in an event that violates their sincere religious beliefs, or effectively be compelled to “speak” in support of it, were left undecided by the U.S. Supreme Court in Masterpiece Cakeshop. “Swing” Justice Kennedy “punted” on those issues before retiring and being replaced by Justice Kavanaugh last year.
It is important to recognize that this dispute is not just about gay weddings. It has much broader implications for all Americans. Also, the media often misses the fact that the Christian business owners involved in these disputes sell their pre-made goods to everyone. No gay people were denied “service.” Also, these Christians are not protesting gay weddings. Rather, this dispute is about the far greater issue of the government (1) forcing citizens to create and effectively (2) say something, and (3) associate with something, they oppose based on (4) their centuries-old sincere religious beliefs. If you don’t comply, the government can (a) fine you hundreds of thousands of dollars personally, and (b) shut down your business. This dispute involves three separate First Amendment rights. (1) The right to freely exercise religion; (2) the freedom of speech, which includes not being compelled to speak; and (3) the freedom of association. Since 1958, the U.S. Supreme Court has recognized that the First Amendment also protects the freedom of association.
After Masterpiece Cakeshop was decided, a very similar legal dispute arose in the State of Washington involving Barronelle Stutzman, a Christian florist. She owns a business called Arlene’s Flowers. She politely declined to create custom floral arrangements for a gay wedding based on her sincere religious beliefs. She is an active member of the Southern Baptist Church. Her beliefs include that marriage can only exist between one man and one woman. The State of Washington’s Attorney General, Bob Ferguson, was so eager to go after her that he filed his case against her personally, and her business, without receiving a complaint from the gay couple. Washington then held that Ms. Stutzman violated its antidiscrimination law.
However, Washington’s Attorney General did not take any action when, in 2017, Ben Borgman, the owner of Bedlam Coffee in Seattle, berated and kicked out pro-life activists who came in to buy coffee after peacefully handing out pamphlets in the community. He said, among other things, and omitting his profanities, “I’m gay! I don’t have to tolerate this! Leave!”
Last year, the U.S. Supreme Court accepted the Arlene’s Flowers case, but then sent it back to the Washington Supreme Court for a decision first to apply the Masterpiece Cakeshop analysis to the facts. In June of this year, the Washington Supreme Court issued its second Arlene’s Flowers decision. It held that the courts of the State of Washington, applying the Masterpiece Cakeshop analysis, did not violate the U.S. Constitution’s guarantee of religious neutrality because they “did not act with religious animus” when they ruled that Ms. Stutzman violated Washington’s law against discrimination. It also held that Washington’s courts “did not act with religious animus when they ruled that such discrimination is not privileged or excused by the United States Constitution.” The Washington Supreme Court thus found “no reason to change our original decision in light of Masterpiece Cakeshop.” It further held that “as applied in this case, the Washington law against discrimination does not violate Ms. Stutzman’s right to religious free exercise under the First Amendment to the United States Constitution.” It also rejected her argument that the State’s actions violated her First Amendment rights to free speech and free association.
It also held “that the Attorney General’s response to the incident at the coffee shop is irrelevant to this case.”
Therefore, the Arlene’s Flowers case appears to be on a path back to the newly configured U.S. Supreme Court a second time to allow it to finally decide the broader First Amendment legal issues Masterpiece Cakeshop did not decide. Given the departure of Justice Kennedy, a gay rights supporter, and Justice Kavanaugh replacing him, that should now occur. Shortly after the State of Washington Supreme Court again ruled against her, Ms. Stutzman announced that she will ask the U.S. Supreme Court to exercise its discretion to accept her appeal. She stated that “the hostility my State has shown me because of my faith is undeniable, and I am confident the U.S. Supreme Court will see that viewpoint.”
In Masterpiece Cakeshop, Justice Thomas, in a concurring opinion joined by Justice Gorsuch, addressed the Court’s failure to decide the important and broad First Amendment legal issues raised in that case. Justice Thomas stated that the fact that the Court legalized gay marriage nationwide in the Obergefell case in 2015 does not diminish the “right to free speech. It is one thing to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share that view as bigoted and unentitled to express a different view. 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 of 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.” (Indeed, recall that both Secretary Clinton and then Senator Obama opposed gay marriage in the 2008 presidential election.)
Jack Phillips, the owner of Masterpiece Cakeshop, is now in his seventh year defending multiple lawsuits against him and his business over this issue. When you win in the U.S. Supreme Court, you would think your legal problems are over. Wrong. He was sued this June by a transgender woman named Autumn Scardinia, who is also an attorney. She claims he violated Colorado’s antidiscrimination law by refusing to create what she calls a “birthday cake” that was to be blue on the outside and pink on the inside, representing her transition from male to female.
So, until the newly configured U.S. Supreme Court decides the broader First Amendment legal issues related to these disputes once and for all, it appears these targeted lawsuits against Christians nationwide will continue.
It is also important to recognize that Mr. Phillips and other Christians are not holding protests against gay marriage. Rather, they are literally minding their own business. But antiChristian government agencies and people who know there are many businesses nationwide that gladly create custom products for gay weddings keep picking fights with Christians over this issue. David Harsanyi, writing in The Federalist this year, states that the gay wedding cases represent “a state-sponsored attack on individuals,” and give the U.S. Supreme Court the chance “to re-affirm that religious Americans can’t be compelled to abandon their free expression and religious liberty simply because they’ve decided to enter the marketplace.” Thus, legal commentator Andrew McCarthy, writing for The National Review last year, noted that while Mr. Phillips won the Masterpiece Cakeshop case based on its facts, “the Justices’ obvious reluctance to defend liberty is a setback. The implication is plain: As long as the next ‘civil rights commission’ is fashionably demure, the next Jack Phillips will lose.” That is precisely what the Washington Supreme Court just did to Ms. Stutzman in the Arlene’s Flowers case. So, it may be the “future case” Justice Thomas predicted that gives the “new” U.S. Supreme Court the chance to decide the broad First Amendment legal issues that Masterpiece Cakeshop avoided deciding. Given that the U.S. Supreme Court previously accepted Arlene’s Flowers for review, it seems likely to again exercise its discretion to accept it for review during its 2019-20 term.
Also, in an Order this June in the Sweetcakes by Melissa gay wedding cake case from Oregon, the U.S. Supreme Court accepted review of that case, vacated the judgment against the Christian bakery owners, and sent the case back to the Oregon Court of Appeals “for further consideration in light of Masterpiece Cakeshop.” This means that, for now, the Christian bakers in Oregon won. But what will happen next? This ruling is just like what the U.S. Supreme Court did with the Arlene’s Flowers case from the State of Washington last year. In Sweetcakes, Aaron and Melissa Klein were the Christian owners of “Sweetcakes by Melissa,” a small bakery in Oregon. They were fined about $150,000 by the State of Oregon for refusing to create a custom cake for a gay wedding based on their sincere religious beliefs. Because of the litigation, they were forced to close their business. They were accused in writing of “bigotry” by Brad Avakian, the Commissioner of Oregon’s Bureau of Labor and Industries. That is much like Colorado’s Civil Rights Commission calling Jack Phillips and his Christian beliefs “despicable.” It is also the precise “bigotry” accusation against Christians that Justice Thomas and Justice Gorsuch warned about in Masterpiece Cakeshop. They wrote that “It is one thing to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share that view as bigoted and unentitled to express a different view.”
So, in some combination, these cases seem likely to end up before the U.S. Supreme Court with a fully developed lower court record, and a new majority of 5 conservative, pro-First Amendment Justices. That allows the Court to finally decide these First Amendment legal issues once and for all. This includes deciding whether the government can ever, consistent with the First Amendment, force someone to effectively speak in support of, and associate with, a gay wedding against their sincere religious beliefs.
Significantly, the First Amendment issues raised by the gay wedding cases concern not just freedom of religion, but also free speech. This is an area of particular interest to Chief Justice Roberts. Amelia Thomson-DeVeaux, writing for FiveThirtyEight last year, noted that Chief Justice Roberts has spent over a decade on the Supreme Court “quietly carving out a space as a prolific and decisive arbiter of free speech law. Supporters and critics both agree that during his tenure, the Court has dramatically expanded the reach of the First Amendment by striking down a wide range of statutes for encroaching on free speech rights. And Roberts has authored more majority opinions on free speech than any other Justice during his tenure, signaling that this is an area where he wants to create a legacy.” Michael McConnell, a professor at Stanford Law School, said last year that it is “very much to Roberts’ credit that his Supreme Court has a genuinely expansive view of free speech that can’t be explained by political favoritism.” Legal commentator Ed Morrissey, writing last year, stated, concerning Masterpiece Cakeshop and government compelled speech, that the Roberts Court is “thinking more broadly,” and in recent free speech cases, “took the gloves off on compelled speech,” perhaps laying the foundation for a broad free speech victory for Christians in the gay wedding cases.
So, this polarizing legal issue could be decided on free speech grounds, perhaps less controversial than the battle between gay rights and religious freedom, and turf where Chief Justice Roberts is partially staking the legacy of the “Roberts Court.” Indeed, in their concurring opinion in Masterpiece Cakeshop, Justice Thomas and Justice Gorsuch stated that “in future cases the freedom of 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.” Thus, the Court’s new group of five generally conservative Justices, and the departure of “swing” Justice Kennedy, the author of Obergefell and Masterpiece Cakeshop, could result in a major decision by the Court addressing the conflict between gay marriage and First Amendment rights being issued in June, 2020, the end of the Court’s next term. That is just five months before the presidential election. That would be very interesting, to say the least. Stay tuned.