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Supreme Court Provides an Important—But Limited—Win for Religious Liberty

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The Story: The Supreme Court handed down Monday an important—though narrow and rather limited—ruling in a significant case involving religious liberty.

The Background: In 2012, an expert baker and devout Christian named Jack Phillips told a same-sex couple that he could not create a custom cake for their wedding celebration because of his religious opposition to same-sex marriage. At the time, Colorado did not recognize same-sex marriage, and Phillips believed he was under no legal obligation to bake a special cake for the ceremony. However, he agreed that he would sell them other baked goods that did not require him to use his artistic talents in a way that violated his conscience.

The couple filed a charge with the Colorado Civil Rights Commission claiming that Phillips had violated the Colorado Anti-Discrimination Act, which prohibits discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.”

During a hearing on the case by the Colorado Civil Rights Commission, a commissioner said Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state.” Another commissioner at a later hearing pointed out that religious freedom had been used to “justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust,” and said that “to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

The Supreme Court said these comments—which were not objected to by other commissioners or even mentioned in later state-court rulings—cast doubt on the fairness and impartiality of the commission’s adjudication of Phillips’ case.

The Colorado commission had also claimed the message of the requested wedding cake would be attributed to the customer, not to the baker. But in three previous cases involving bakers who refused to bake cakes that included religious texts expressing disapproval of same-sex marriage, the commission had sided with the bakers. These actions showed, the court said, that Phillips was not being treated neutrally by the commission.

Justices Roberts, Kennedy, Bryer, Alito, Kagan, Gorsuch, and Thomas voted in favor of Masterpiece Cake Shop and agreed, “The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.” Justices Ginsburg and Sotomayor voted in dissent and joined in a dissenting opinion.

What It Means: The decision is an important win for Jack Phillips and for religious liberty. But it doesn’t address the underlying issue of whether in the future Christians will be forced by government to “bake the cake” (i.e., use their artistic talents in a way that violates their conscience). Justice Kennedy, who wrote the opinion of the majority, makes it clear that “the adjudication concerned a context that may well be different going forward in the respects noted above.” Kennedy also wrote:

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.

Kennedy appears to be signaling to the states that they may be able to find ways to make Christian artists violate their conscience—they just can’t be so openly hostile toward religious beliefs when doing so.

Still, we can take comfort in the court’s reaffirmation of the importance of religious free expression.

Justice Kagan noted (and Justice Bryer agreed) that “state actors cannot show hostility to religious views; rather, they must give those views ‘neutral and respectful consideration.’”

In a concurring opinion, Justice Gorsuch wrote, “No bureaucratic judgment condemning a sincerely held religious belief as ‘irrational’ or ‘offensive’ will ever survive strict scrutiny under the First Amendment.”

“In this country,” Gorsuch added, “the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise.”

In his own concurring opinion, Justice Thomas reminds us why it is essential to fight not only for religious freedom but also for freedom of speech. “Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day,” Thomas wrote. “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.”’

Addendum: Some people have objected to the media’s referring to the ruling as “narrow.” This reference, though, isn’t to the margin of votes (on the Court, 7-2 is not “narrow”) but to the narrow scope in which this case was decided, and how it will likely not be setting a major precedent for future cases.

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