June 4, 2018

U.S. Supreme Court Punts On Religious Defense To Gay Discrimination in Masterpiece Cakeshop Case

Can a religious preference belief ever support a defense to anti-discrimination laws?  That was the question the U.S. Supreme Court faced and avoided in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission earlier today.

The issue revolved around a cake shop whose devout Christian owners refused to bake a wedding cake for a gay couple who was getting married.  After the couple filed a charge with a state agency claiming they “had been denied ‘full and equal service’ at the bakery because of their sexual orientation,” the store owners claimed that their religious objection to gay marriage was protected by the Free Speech and Free Exercise clauses of the First Amendment and superseded the couple’s right to be free of sexual orientation discrimination.

The case made its way to the U.S. Supreme Court and the court could have decided the validity of the argument that a sincerely held religious belief can serve as a defense to discriminatory conduct.  But instead, the Court decided that anti-religious statements made by one of the state commissioners, among them comparing the store owners’ religious views to those offered by defenders of slavery and the Holocaust, violated the First Amendment.

In a dissenting opinion, Justice Ruth Bader Ginsburg advocated for the gay couple, arguing that the evidence of hostility relied upon by the majority, including comments by one or two members of the four-member Commission, was not the kind the Court had previously held to violate the Free Exercise clause.  Justice Ginsburg reached the question that the majority would not, finding that Phillips’ refusal to bake a wedding cake for the couple denied them a good or service that he would have provided to a heterosexual couple, and thus violated CADA as determined by the Court of Appeal.

So, what now?  The Supreme Court appeared very reluctant to wade into the thorny issue of when, if ever, a religious practice can serve as a defense to a neutral and generally applicable law like anti-discrimination laws in effect around the country.  As one Justice noted, a decision in 1990 found that for the most part such a defense is unavailable.  No one would reasonably argue, for example, that religious beliefs could serve as a defense to laws prohibiting race, sex or disability discrimination – why should sexual orientation discrimination be any different?

At the same time, it has been only three years since the Supreme Court decided that laws prohibiting gay marriage were unconstitutional.  Justice Anthony Kennedy, a centrist, was the deciding vote on both cases involving gay marriage and is widely rumored to be considering retirement from the court.  Were he to be replaced by a more conservative justice, the Supreme Court may well be forced to tackle the difficult issue they avoided today.

– China Westfall