There are several important religious freedom cases percolating through the courts nationwide, one or more of which may end up before the newly configured U.S. Supreme Court, which is now split 5 to 4 in favor of religious freedom. These cases give the Court the chance to uphold the First Amendment rights to freely exercise religion and engage in free speech.
In last year’s Masterpiece Cakeshop case, the U.S. Supreme Court narrowly ruled in favor of the Christian baker in Colorado who refused to specially bake a cake for a gay wedding based on his sincere religious beliefs.
Shortly after the U.S. Supreme Court ruled in favor of Jack Phillips, the Christian owner of the Masterpiece Cakeshop bakery in Colorado, an attorney asked him to create a cake designed pink on the inside and blue on the outside, which the attorney said was meant to celebrate a gender transition from male to female. Mr. Phillips refused because the custom cake would have expressed messages about sex and gender identity that conflict with his sincere religious beliefs. He then filed a lawsuit against Colorado to immediately stop its attempt to punish him again. Colorado, likely sensing another loss in court, then dismissed the discrimination charge against him in early 2019.
Now, Barronelle Stutzman, the owner of Arlene’s Flowers in the State of Washington, is proceeding before the Washington Supreme Court. She refused to create custom floral art for a gay wedding based on her sincere Christian belief that marriage is only between one man and one woman. Her case could be the case the U.S. Supreme Court takes to issue a broad rule of law prohibiting government discrimination against Christians. Justice Thomas, for one, has stated that he wants to make a broader legal ruling than now retired Justice Kennedy was willing to make in Masterpiece Cakeshop.
Justice Kennedy and the Court majority limited its ruling to the facts of that case, and purposely avoided issuing a broad legal ruling barring government discrimination against Christians in these situations. So, not surprisingly, this resulted in more legal challenges in similar situations across the country.
It is widely assumed that the addition of Justice Gorsuch and Justice Kavanaugh (who replaced Justice Kennedy) to the Court in the last two years gives the Court a new 5-4 conservative majority that will more broadly rule in favor of religious freedom and against governmental targeting of people based on their sincere religious beliefs.
Brush & Nib Studio v. City of Phoenix is a case argued before the Arizona Supreme Court early this year. Brush & Nib challenged a City of Phoenix ordinance that forced the studio’s owners to create custom-made wedding invitations celebrating same-sex marriage contrary to their sincere religious beliefs. The law threatens up to six months in jail, $2,500 in fines, and three years of probation for each day that there is a violation.
In October, 2018, in the Sweetcakes by Melissa gay wedding cake case from Oregon, the Christian bakery owners who lost before the Oregon Court of Appeals (Oregon fined them about $150,000 after they refused to create a cake for a gay wedding ) petitioned the U.S. Supreme Court to exercise its discretion to accept their case. The Court has yet to announce whether it will do that.
Therefore, one of these cases seems likely to end up before the U.S. Supreme Court in the next year or two, giving the newly composed Court the chance to issue a broad legal ruling in favor of religious freedom that will have an impact far beyond gay weddings. It is important to recognize that the Christians in these cases are not refusing to sell all products to all gay people. Rather, they just oppose (1) the government (2) forcing them to create something from scratch that (3) makes them at least implicitly endorse something that violates their sincere religious beliefs, or (4) they will be fined by the government and it will shut down their business. That raises fundamental issues concerning the First Amendment rights to (1) freely exercise religion and (2) not be forced to say or do something by the government. These are founding principles of America. So, these issues should concern all Americans, regardless of how they feel about gay marriage. As shown above, the government of the State of Colorado, for example, is repeatedly going after one man, Jack Phillips, apparently upset that it lost the Masterpiece Cakeshop case last year. What governmental entity and which person is next, and why? That should concern everyone. Indeed, just a few years ago, prominent politicians like President Obama and Secretary Clinton opposed gay marriage. The point of the First Amendment is to protect unpopular speech and freedom of religion from censorship and oppression by the government. Will the newly composed U.S. Supreme Court breathe new life into those founding beliefs? This is something that should concern all Christians and supporters of our Constitution.
Another example is a case pending in a federal appellate court involving a Catholic adoption agency receiving taxpayer funds and a law that requires it to place children with gay couples they object to on sincere religious grounds. In Fulton v. City of Philadelphia, a federal trial court in Pennsylvania held that Philadelphia’s City Council was justified in ending its relationship with Catholic Social Services, a charity that refuses to place foster children with same-sex couples. The City Council stopped funding to it because of its stance on gay marriage and adoption, which is consistent with the Catholic Church. The court ruled that it illegally discriminates against gay couples. An appeal is pending in the federal Third Circuit Court of Appeals, and the case could be on its way to the Supreme Court.
Concerning what to expect from the Supreme Court now, respected legal commentator David French, writing early this year in The National Review, stated that Chief Justice John Roberts is “the new swing vote, and he’s now the most powerful jurist in the land.” This is because he has publicly struggled with the conflict between his belief in “originalism” —which holds that the Constitution should be interpreted according to its original public meaning—Thus, “rights” not stated in it should not be invented—but he is also an “institutionalist.” He wants to preserve the integrity of the Court as an institution that does not take sides on and decide contested political issues that should be decided by the people, directly or through their elected representatives. His decision to join the Court’s four liberal justices and reject a constitutional challenge to the controversial Obamacare law a few years ago is seen as a key example. Mr. French argues that, actually, “there is no conflict between originalism and institutionalism. In fact, originalism will do more over the long run to sustain and enhance the institutional legitimacy of the high court than any short-term political calculation. The true threat to the Supreme Court’s legitimacy isn’t any given decision or opinion. No, the true threat to the institution is its outsized role in American public life. The Court has strayed too far from its constitutional bounds. Its unelected, life-term Justices have entirely too much power over American lives.” He further states, as an example: “What would happen if Roe v. Wade is overturned? The Court’s role in American life would diminish. More democracy would happen, from coast to coast, as American states enacted laws that reflected their populations’ values. Presidential elections would be less fraught, as the stakes of American elections would grow higher at the state and local level — exactly where the founders intended Americans to focus their political efforts. America needs a Court in its proper place. Roberts should reject the great temptation and remember a fundamental truth—the Chief’s institution needs the Chief’s originalism. No other course of action will calm debate. No other course of action will preserve the legitimacy of the court. The court’s political calculations are a cause of, not the solution to, America’s great political divide.” So, readers should stay tuned as decisions from the new 5-4 “originalist” Supreme Court are issued in the months and years ahead