The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission decided June 4, 2018 in the SCOTUS. “Decided” may be too generous a description of a majority Opinion crafted to avoid the hard questions still lurking. Jack Phillips owned the mentioned Cakeshop during 2012 in a Denver suburb. At the time in question Colorado law discriminated against same-sex couples by not allowing them to marry in that state. Simultaneously, Colorado Civil Rights law pertaining to the provision of goods and services prohibited discrimination based upon sexual orientation. By Jack’s description, he was a devout Christian holding the belief that marriage is a sacrament reserved for one man and one woman.¹ Further by Jack’s description, his custom wedding cakes were “created” and not merely produced like common baked goods.
Enter Charlie Craig and Dave Mullins shopping for a wedding cake for a local reception to follow their planned wedding in Massachusetts (which permitted same-sex marriage). Charlie and Dave asked Jack to make their cake. Jack declined to “create” the wedding cake but declared his willingness to sell Charlie and Dave baked goods other than a cake designed to celebrate a same-sex marriage.
Charlie and Dave complained to the Colorado Civil Rights Commission alleging discrimination (in the provision of goods and services) based on sexual orientation. Jack asserted defenses but lost on the administrative level and in the Colorado Court of Appeals while the Colorado Supreme Court declined review. The SCOTUS Opinion reversing Jack’s loss below was authored by Justice Kennedy joined by five other Justices, four of whom joined in at least one of three concurring opinions. Justice Thomas concurred (in part) without joining the majority Opinion. Justices Ginsburg and Sotomayor dissented. Those looking for clarity in the array of opinions are bound to be disappointed.
Charlie and Dave had the right under Colorado statute to shop for goods and services without discrimination based on sexual orientation. Jack the baker had the right to the “Free Exercise” of his religion, which condemned same-sex marriage.² Moreover, Jack claimed that his custom wedding cakes constituted protected artistic expression which the state could neither prohibit nor compel.
The familiar legal standard is that a law of general application which is “neutral” (toward religion) on its face but nonetheless interferes with a religious practice or belief will generally withstand a Free Exercise challenge. Employment Division v. Smith, 494 U.S. 872 (1990).³ The majority Opinion avoided direct conflict with this standard by gleaning from the record some substantial evidence of Colorado Civil Rights Commission hostility toward Jack’s religious beliefs. Reversal was based on Colorado’s violation of Jack’s right to a “neutral and respectful consideration” of his Free Exercise claim. What if the Colorado Civil Rights Commission had been less conspicuous in its hostility toward Jack’s religious beliefs? Which side would have prevailed in the SCOTUS? The answer may or may not be revealed next October Term and may or may not entail some new test for the balancing of competing interests at stake. The most rational (but unlikely) solution would recognize the reality that homosexuality is a minefield in all the Abrahamic Faiths and can hardly be the subject of a religiously neutral law.
The CLB assigns substantial blame for the controversy on Charlie and Dave, men who should know that we are not all alike. As cake shoppers, they had many choices. Jack the baker had no choice other than to follow his religious imperative. It would have been much better for Charlie and Dave to tolerate Jack’s views just as they seek acceptance for themselves from a wary heterosexual world.
_________
¹The CLB sees marriage as a sacrament which was inevitably and necessarily drawn into civil law. Those claiming religious grounds for monogamous marriage seem untroubled by Old Testament precedent of men taking multiple wives without criticism or consequence.
² The most familiar (or notorious) condemnation of male homosexuality is found in the Old Testament Book of Leviticus at Chapter 18 verse 22. There it is written that it is an abomination for a man to lie with another man. Leviticus likewise condemns “fornication” between unmarried heterosexual partners. This latter condemnation receives relatively less attention. In the New Testament epistles of the Apostle Paul one may find anti-homosexual references to men “committing what is shameful” and “them that defile themselves with mankind.” Romans 1:26-27 and Corinthians 6:9-10. The Book of Jude at 1:7 criticizes “going after strange flesh.”
³Confusion about the standard for (religious) neutrality in laws is bolstered by the Religious Freedom Restoration Act (RFRA) 42 U.S.C. §2000 bb-1 requiring strict scrutiny of any regulation burdening religious practice. The SCOTUS overturned RFRA as applied to the states (but not as to Federal application). City of Boerne v. Flores 521 U.S. 507 (1997). On the Federal side RFRA may be cited by prisoners who want long beards, special diets, and group prayer sessions. A case of note decided under RFRA is Burwell v. Hobby Lobby Stores, 134 Sup. Ct.(2014).
Leave a Reply