July 12, 2018
by John Kaempf

In Masterpiece Cakeshop, the U.S. Supreme Court ruled for a Christian baker in Colorado who sells his goods to anyone, but refused to create a cake for a gay wedding due to his sincere religious beliefs. The Court, however, avoided deciding the broader first amendment legal issues. Oregon’s Sweetcakes By Melissa case, which involves less overt government hostility to religion than Masterpiece, may be the case that requires the Court to decide these issues for the nation.

In June, 2018, the U.S. Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, two men came into the small Colorado bakery owned by Jack Phillips, a devout Christian, to order a customized cake for their same-sex wedding. Mr. Phillips sells his premade goods to anyone. He politely told the couple, however, that he would not (1) create a cake (2) for their gay wedding because of (3) his religious opposition to gay marriage. The couple filed a charge with the Colorado Civil Rights Commission, alleging sexual orientation discrimination in violation of the Colorado Anti-Discrimination Act. (A version of the statute exists in many states.) Colorado ruled in favor of the couple, but the U.S. Supreme Court reversed.

The Court recognized that “the case presents difficult questions as to the proper reconciliation of at least two principles.” The first is the authority of a state to protect the rights of gay persons who wish to be married, but “face discrimination when they seek goods or services.” The second is the First Amendment right to “both the freedom of speech and the free exercise of religion.” (The First Amendment to the U.S. Constitution, which applies to all 50 states, provides, in relevant part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.”)

The Court, in a 7-2 decision—the dissenters are Justices Ginsburg and Sotomayor—limited its holding to the egregious facts summarized below. The “Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.” The holding is based on a Colorado Commissioner saying that “religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust. It is one of the most despicable pieces of rhetoric that people can use their religion to hurt others.”

The Court held that “this sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.”

The Court held that “the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”

The majority opinion also relies on the different treatment Mr. Phillips received compared to other bakers who refused to create cakes with anti-gay marriage messages they objected to. In other words, Colorado held that it is okay to support gay marriage, but not to oppose it, even on sincere religious grounds.

In a concurring opinion, Justice Gorsuch, the Court’s newest member—who has shown that he supports religious freedom— highlights this contradiction, stating that the “Commission failed to act neutrally toward Jack Phillips’s religious faith. Maybe most notably, the Commission allowed three other bakers to refuse a customer’s request that would have required them to violate their secular commitments. Yet it denied the same accommodation to Mr. Phillips when he refused a customer’s request that would have required him to violate his religious beliefs. The 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. The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.”

The majority, however, limited its ruling to the facts of the case. It held that “the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phillips’ religious beliefs.”

So, the Court in Masterpiece “punted” on the important First Amendment legal issues. It did not decide whether people with sincere religious objections are exempt from sexual orientation discrimination laws. It did not decide whether the government compelling someone to engage in artistic expression violates their right to free speech. Instead, the Court held that “however later cases raising these or similar concerns are resolved in the future,” the ruling at issue “must be invalidated.” It also stated that “the outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

It now appears that Justice Kennedy “passed the buck” on these important legal issues by retiring right after Masterpiece was decided. He wrote the majority opinion in that case and Obergefell v. Hodges, which legalized gay marriage in 2015.

The majority in Masterpiece at least acknowledged that “it hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate.”

Justice Thomas, in a concurring opinion joined by Justice Gorsuch, bluntly addressed the Court’s failure to decide the important First Amendment issues in Masterpiece. Justice Thomas stated that the fact that the Court legalized gay marriage in Obergefell does not “diminish Phillips’ 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.”

America is on a collision course concerning this legal dispute.

America is based on respect for the rule of law. Gay marriage is now legal. But Americans also greatly value the constitutional rights to free speech and to freely exercise religion. Christians are not seeking to block gay weddings. Rather, many just do not want the government forcing them to endorse and participate in something they oppose based on their sincere beliefs.

Will tolerance be a two-way street?
This is why Americans who care about their First Amendment rights should care about Masterpiece and the decisions that will arise from it until the U.S. Supreme Court decides the legal issues it did not decide.

Legal commentator Robert Tracinski, writing for The Federalist, aptly notes that the Masterpiece “ruling is so narrowly construed that it basically remains agnostic on the question of whether government officials can force a religious person to violate his conscience and instead just focuses on how scrupulously polite they are when they violate it. For now, The Supreme Court is treating our essential freedoms as yet another can to be kicked down the road.”

Similarly, legal commentator David French, writing for The National Review, notes that Jack Phillips won because the “Colorado Civil Rights Commission was mean to him. The Court does not say how the Commission should have decided the matter; it merely admonishes that, in future hearings, the Commission must avoid being so overt in their hostility to unreconstructed Christians. In the next case, just patiently hear out the baker, politely rule against him, and move on.”

Also, as recognized by the influential SCOTUSblog, “whether the very same law could sometimes violate free speech rights is still totally open.”

So, Jack Phillips won his case based on its egregious facts—a State agency comparing his sincere Christian beliefs to “despicable” events like slavery and the Holocaust. But whether the constitutional rights to free speech and to freely exercise religion will be upheld in other circumstances— where religious discrimination and the suppression of free speech are more subtle— remains to be decided. As stated in Masterpiece, “the outcome of cases like this in other circumstances must await further elaboration in the courts.”

An Oregon case involving less overt religious discrimination by the government may force the U.S. Supreme Court to “further elaborate” on these important constitutional issues for the nation. Oregon’s Sweetcakes by Melissa case has received a lot of national attention. It also involves Christian bakers, Aaron and Melissa Klein, who sold their pre-made goods to anyone. They refused, however, to create a cake for a gay wedding based on their sincere religious beliefs. Oregon’s Bureau of Labor and Industries “BOLI” Commissioner, in his ruling against the Kleins, stated that Oregon’s public accommodations law means that people have the right to shop “unfettered by bigotry.” Thus, unlike in Masterpiece, Oregon’s BOLI Commissioner only implied that the Kleins are bigots. Also, in a more ambiguous manner than the Colorado Commissioner in Masterpiece, he told a local newspaper—concerning the complaint against the Kleins that was then pending before him— that “everyone is entitled to their own beliefs, but that doesn’t mean that folks have the right to discriminate.” He contended that he was only “speaking generally.”

In 2017, the Oregon Court of Appeals, in the course of affirming BOLI’s penalties against the Kleins—but before Masterpiece was decided—held that the BOLI Commissioner’s statements were “not improper” because there is “no basis to conclude” that he “was commenting specifically on the merits of the Kleins’ case.”

The court further held that his “public comments do not establish a lack of impartiality.”

The court also rejected the Kleins’ argument that the BOLI Commissioner telling a local newspaper—concerning the case against them—that “the goal is to rehabilitate”—showed he was biased against them. The court also affirmed BOLI’s $135,000 fine against the Kleins, which it said represented the gay couple’s damages for not getting the cake they wanted. Also, the court rejected the Kleins’ arguments that Oregon’s actions violated their First Amendment rights to (a) free speech, and to (b) freely exercise their religion.

In June, 2018, after Masterpiece was decided, the Oregon Supreme Court announced that it would not exercise its discretion to accept Sweetcakes for review. This allows BOLI’s implied Christian “bigotry” ruling to stand. Therefore, The Kleins’ next step is to petition the U.S. Supreme Court to exercise its discretion to accept their case.

Because the governmental hostility to religion is not as overt in Sweetcakes as it was in Masterpiece, this could make Sweetcakes the case that forces the U.S. Supreme Court to rule on the broader First Amendment legal issues. Sweetcakes may be the case that Justice Thomas said is needed when Obergefell legalized gay marriage three years ago.

Will religious freedom and free speech survive, or does the new right to gay marriage prevail over these longstanding First Amendment rights?  

How can these competing rights be balanced? The majority in Masterpiece states that “the outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs.” Sweetcakes may be the case to force the needed “further elaboration” by the U.S. Supreme Court for the benefit of the entire country.

Oregon may also end up having a related legal issue decided for the nation through Oregon Revised Statutes 659A.006(5), an often overlooked statute enacted in 2007. That was before Obergefell legalized gay marriage. That statute provides, in relevant part, that “it is not an unlawful employment practice for a bona fide church or other religious institution to take any employment action based on a bona fide religious belief about sexual orientation.” What if an Oregon church or religious school fires an employee for this reason, and they sue for reinstatement and/or damages—who will win? Is this statute constitutional in light of Obergefell? Both sides have legitimate arguments. This Oregon statute and others like it nationwide may result in more constitutional challenges in the wake of Obergefell and Masterpiece.

These constitutional issues may also be decided for the nation by a case from the State of Washington called Arlene’s Flowers, Inc. v. Washington. The issues in that case are (1) whether the government compelling the creation and sale of custom floral arrangements to celebrate a gay wedding violates the free speech clause of the First Amendment; and (2) whether the government requiring someone to do this when it is contrary to their sincere religious beliefs violates the free exercise clause of the First Amendment. In June, 2018, after Masterpiece was decided, the U.S. Supreme Court granted the flower shop owner’s petition to reverse the Washington Supreme Court’s judgment against her. The Court also sent her case back to Washington’s courts and instructed them to reconsider it in light of the Court’s analysis in Masterpiece.

This is important because the Washington Supreme Court ruled that the government can force the flower shop’s owner to create artistic expression and participate in a gay wedding that conflicts with her faith. This case may end up back in the U.S. Supreme Court for a full decision on the merits after Washington’s courts reconsider it as recently ordered.

Whether the Sweetcakes or Arlene’s Flowers cases are accepted for a full review on the merits by the U.S. Supreme Court is solely up to the Court’s discretion. It appears likely, however, that at least one of these cases will be accepted by the Court in the next year given that they present the legal issues not decided in Masterpiece. Also, Justice Kennedy retiring from the Court, as discussed below, means that a newly configured Court may be more willing to tackle these legal issues head-on, as Justice Thomas wants. Thus, one of these cases might soon lead to broader constitutional holdings about (1) free speech, and/or (2) the free exercise of religion.

These are very interesting times for First Amendment law and people of faith.

This dispute shows that “elections have consequences.” President Trump successfully nominated Justice Gorsuch, a pro-religious freedom conservative, to replace Justice Scalia on the U.S. Supreme Court last year. As discussed in more detail below, Justice Kennedy—who wrote both the Obergefell and Masterpiece majority opinions, and supports abortion rights—he was a moderate and often the deciding “swing” vote in noteworthy cases—announced his retirement this summer. That gives President Trump his second appointment to the Court.

Quite simply, without Justice Kennedy, gay marriage would not be legal. Also, the right to an abortion contained in the 1973 Roe v. Wade decision may someday be overturned if a more conservative person replaces him.

The nominee to replace Justice Kennedy, Judge Brett Kavanaugh— who is discussed in detail below— will likely move the Court to the “right,” meaning, as relevant here, (1) in support of religious freedom; (2) against government-compelled speech; (3) possibly against gay marriage; and (4) possibly against abortion. How far to the right, and how soon, is the subject of debate. Readers can thus expect to see a lot of controversy over this nomination as it will likely change the Court’s balance somewhat.

While this should be a heated battle that gets a lot of attention this summer and fall, the nominee will likely be confirmed, like Justice Gorsuch. This should occur in part because Supreme Court nominees can no longer be filibustered. A simple Senate majority is now enough to force a vote on and to confirm a Supreme Court nominee.

Thus, the Court will soon likely have a 5 to 4 conservative majority that should last for at least a generation. As stated by Ed Kilgore for New York Magazine, this Supreme Court vacancy “is, to put it mildly, a big, big decision that will almost surely trigger a loud and divisive confirmation fight and, assuming Republicans win it, a major change in the balance of power on the Court.”

Also, the Court’s two oldest Justices have opposed religious freedom and free speech, and support abortion rights. (Justice Ginsburg is 85 and Justice Breyer is 80.) One or both would also be replaced by a young, conservative Justice as long as President Trump stays in his position.

Many in government and elsewhere may disagree with the Kleins’ and Mr. Phillips’ religious beliefs. But, as recognized by Justice Gorsuch in his Masterpiece concurring opinion, it is not the role of the government to sit in judgment of sincere religious beliefs. Rather, it is to protect their free exercise. Through protecting sometimes unpopular religious beliefs and speech, our courts can uphold our country’s bedrock commitment to serve as a refuge for religious freedom and free speech.