On June 4, the Supreme Court of the United States ruled in favor of a Colorado baker who declined to make a cake for a same-sex couple’s ceremony in 2012.
While a victory for this baker and his beliefs, the 7-2 ruling was actually narrow in its scope, deciding to frame its decision in terms of free exercise of religion, not freedom of speech.
Religious Freedom vs. First Amendment
The Colorado Civil Rights Commission, which took up the case on behalf of the couple, argued that Masterpiece Cakeshop, Ltd. was acting in a discriminatory fashion. The owner of the shop, Jack Phillips, had in the past defended his decision both on the grounds of his religious freedom, and his right to practice his artistic business, which he argued, could be protected by the First Amendment.
The court declined to define the practice of baking a cake (or arranging flowers, providing wedding invitations, etc.) as free speech, which would have shielded merchants of many types in the future from providing services for events in which they have religious objections.
Another intriguing point that may have tipped the scale in the favor of Mr. Phillips was the court’s emphasis on how the Colorado anti-discrimination commission disparaged religion. The justices noted that neutral laws – in this case, Colorado’s law prohibiting discrimination based on religion - cannot themselves be applied with a bias against religion. They decided that in this case, the state commission had indeed acted with animus, and not with neutrality.
While upholding this principle of neutrality is laudable, it is not a sustainable argument for the long-term protection of religious freedom. In essence, the court suggested that if a state would like to file suit against a religious belief, they should do so with more finesse, and the case may have a better opportunity of winning – a wry nod to society’s current belief that whatever it doesn’t see, doesn’t exist.
A Protection of Two Opposing Views
The final item of interest in this ruling is an observation that the majority – in several passages – made pains to note that the decision should not be seen as a broader exemption for religious merchants who object to serving same sex couples. Justice Kennedy, who delivered the majority opinion, stated: “society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity or worth.”
He did state categorically that religious and philosophical objections are protected – but that they do not allow business owners “to deny protected persons equal access to goods and service under a neutral and generally applicable public accommodations law.”
It cannot be overstated – the fight over religious liberty is far from decided. The Supreme Court has yet to definitively rule whether religious liberty overrides anti-discrimination laws. Justice Kennedy has generally been a voice on the court in favor of LGBT cases, though he wrote the opinion on this ruling. Justices Thomas, Roberts, Alito, and Gorsuch would seem to rule on the side of religious liberty, while Justices Kagan, Ginsberg, Sotomayor, and Breyer have signaled they would rule more on the side of anti-discrimination laws.
While a broad decision at 7-2, the narrowness of the grounds in Masterpiece will do nothing but invite further litigation in this matter.