Tomorrow the Supreme Court hears arguments in a critical religious liberty and free speech case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. Christians should care about this case because it concerns whether the government can force people to act against their deeply held religious convictions.
The case involves baker Jack Phillips, a Christian who ran afoul of the Colorado Civil Rights Commission for refusing to make a cake for the wedding of two men. The Supreme Court itself made such a case nearly inevitable when it declared gay “marriage” a constitutional right in the 2015 Obergefell decision. If gay marriage is a constitutional right, the reasoning goes, then businesses can’t refuse to provide services to gay weddings.
As The Wall Street Journal noted, Phillips says that baking a cake is an artistic expression subject to First Amendment free speech protections. Phillips has provided bakery services to gays under other circumstances, so his point is not that he won’t serve gay customers. It is that he objects to gay marriage and does not believe that the state should force him to create an artistic product under any circumstances, much less one that violates his conventional, traditional religious beliefs. As a matter of policy, Phillips also won’t produce Halloween cakes, or cakes that feature any profanity or suggestive themes.
Court precedent has generally frowned upon the idea of the government forcing people to act against religious conscience. Even at the time of America’s founding, political leaders were well familiar with extending conscience exemptions to groups like the Quakers. As I have noted elsewhere, the Constitution provides an exemption for Quakers and others who might have scruples about swearing oaths.
Twentieth-century cases involving the Jehovah’s Witnesses repeatedly found that the government could not force them into making expressions of patriotic devotion, like saying the Pledge of Allegiance.
The case for Phillips may run into trouble, however, because of the precedent of Employment Division v. Smith (1990). This was a peculiar case in which Antonin Scalia, normally a great friend of religious liberty, argued in the majority opinion that a state could infringe upon religious freedom when doing so was an “incidental effect of a generally applicable” law. In that case, two men were fired for using peyote, even though they claimed that they were using it for ritual purposes in the Native American Church. The state of Oregon had banned peyote, and the Court found that since the law was not intended to discriminate against religious people specifically, the termination could stand.
Colorado will similarly argue that it is in the public interest to prevent discrimination against gays and lesbians, and that this requirement is “generally applicable” to all business people in the state, not just principled Christians. The problem is that it is hard to envision whom this policy might affect other than bakers of traditional religious views. And the commission has permitted other bakers to refuse to make cakes expressing hostility to gay marriage, so the law is not being equally applied. Employment Division v. Smith made clear that a state cannot “impose special disabilities on the basis of religious views or religious status.” Functionally, that is what Colorado has done in this case.
The Court’s newest justice, Neil Gorsuch, has a good track record of defending religious liberty, so there is some reason for optimism that the Court might narrowly find for Masterpiece Cakeshop. If they do not, it will be a devastating blow to a number of Christian business owners who have been disciplined under similar circumstances. A decision against Masterpiece Cakeshop would also raise more questions, such as whether a state can force Christian adoption agencies to place children with same-sex couples.
We can hope that in Masterpiece Cakeshop the Court will defer to the First Amendment’s free speech and religious liberty provisions, as compared to the right to same-sex marriage, which the Court majority only recently discovered in the Constitution. Of course, Jack Phillips hardly prevented any same-sex couples from getting married; he just resisted the state’s attempt to force him to create a cake.
See also Jack Phillips, “Here’s why I can’t custom-design cakes for same-sex weddings,” USA Today
