This summer the U.S. Supreme Court is expected to issue a decision in a difficult case that pits the free exercise of religion and free speech rights of a wedding cake maker against the rights of a same-sex couple to be accommodated in the marketplace. The couple demands the cake; the baker refuses because he thinks he will be sinning. The question before the Court is if the state of Colorado can or must require him to bake and decorate the cake.<\/p>\n
Thousands of pages of briefs have been generated on the various aspects of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission<\/em>, and we can highlight some of the key issues. Given the sheer volume of writing on the case, there is no way that this article can address every case, legal argument, or hypothetical analogy. But here are several of the key issues that may provide some clues as how the Court might try to untangle this surprisingly complex case.<\/p>\n Free Exercise Argument, Jurisdiction, and Precedent<\/strong><\/p>\n First, this is a Colorado case brought under state law. The baker violated a Colorado state anti-discrimination law, as interpreted by the state\u2019s civil rights commission. If the Court upholds the state law and the way that the commission interpreted it, the decision does not automatically affect the rights of business owners in other states.<\/p>\n Phillips raises two primary defenses—first, that requiring him to bake the cake violates his free exercise of religion. Second, that making him talk through baking the cake violates his right to freedom of speech. <\/p>\n When it comes to the free exercise of religion, the Court has ruled that states have broad discretion to enact laws that apply to everyone, legally phrased as a \u201cneutral law of general applicability.\u201d In 1990 the late Justice Antonin Scalia wrote the majority opinion in Employment Division v. Smith<\/em>, which said the state of Oregon could deny unemployment benefits to Native Americans who had used peyote during religious ceremonies. Scalia argued, in essence, that the employees had tried to use religion as an excuse to get around the neutral, generally applicable ban on possession of peyote. Scalia stated that allowing an individual to be exempt from such laws because of religion would permit him, \u201cby virtue of his beliefs, \u2018to become a law unto himself.\u2019\u201d Requiring the state to come up with a \u201ccompelling interest\u201d before refusing an exemption \u201cwould lead toward anarchy,\u201d Scalia wrote.<\/p>\n Scalia apparently did not think highly of the rights of a religious minority (coming close to calling them legal anarchists), though at the time alarm bells went off regarding the impact on a wide variety of \u201cmainstream\u201d issues. Caution is wise when a problematic decision is defended with a \u201cWhat\u2019s the worst that can happen?\u201d<\/p>\n In 1993 Congress sought to overturn the Supreme Court\u2019s opinion in Smith<\/em> by reinstating the \u201ccompelling state interest\u201d test that the Court previously propounded in 1963 in Sherbert v. Verner<\/em>. The resulting Religious Freedom Restoration Act (RFRA) flew through Congress, and was signed into law by President Clinton. Sherbert <\/em>involved a Seventh-day Adventist who was denied unemployment benefits when she was fired for refusing to work on the Sabbath (sunset Friday to sunset Saturday). The Court had held that the free exercise clause required that the government demonstrate two things—first, a compelling interest in making a law, and second, that the resulting law was narrowly tailored to advance that interest. <\/p>\n In 1997, in Boerne v. Flores<\/em>, the Court ruled that while Congress could restrict its own legislation that infringed on the free exercise of religion, it did not have the power to apply RFRA to the states. <\/p>\n Fast-forward to 2014, when the Supreme Court applies RFRA in Burwell v.<\/em> Hobby Lobby<\/em> and rules that the closely held private company with tens of thousands of employees does not need to comply with the contraception mandate of the federal Affordable Care Act because it offends the free exercise of religion rights of the owners. <\/p>\n And, at the same time, while the owners of Hobby Lobby are free to ignore a federal law that violates their beliefs, we have Mr. Phillips, the owner of a small business, who is beholden to the laws of the state of Colorado. If RFRA applied to the states, Mr. Phillips would easily win his right not to make the cake. <\/p>\n If the Court makes a free exercise ruling on the right not to make a wedding cake for a same-sex couple, it would have to overturn both Smith<\/em> (1990) and Boerne <\/em>(1997) unless it could otherwise determine that Colorado made a mistake in how it applied its law. Interestingly, the federal government has not readily pushed for recognition of sexual orientation as a Title VII right, perhaps because state laws have much power regarding enforceability against free exercise claims.<\/p>\n If the Court finds that Colorado has the right to compel Mr. Phillips to make the cake and that it does not have jurisdiction to address the state-level free exercise dispute, then the case will likely apply only to jurisdictions that meet two criteria—first, they do not have state-level RFRAs that address the issue directly, and second, they have state anti-discrimination laws. Under that scenario, Mr. Phillips would need to convince the Colorado legislature to carve out an exception for him in state law if he wished to continue to bake only those cakes that he felt complied with his religious beliefs.<\/p>\n Sincerity of Belief<\/strong><\/p>\n In discussing the case, some have said that they do not believe that Mr. Phillips correctly interpreted the Bible when it comes to whether or not he would be theologically complicit with same-sex marriage if he chose to bake a cake for a same-sex wedding.<\/p>\n While the question \u201cWhat would Jesus do?\u201d is relevant to practicing Christians as they contemplate the issue, they should not anticipate that the state would establish their interpretation as the correct view. That would violate the establishment clause. While people can debate how they would personally respond, this rationale should not be attributed to the government.<\/p>\n Last year the U.S. Court of Appeals for the Fourth Circuit issued a ruling in the case of an employee of an energy company who had refused to submit to a biometric hand scan for religious reasons (EEOC v. Consol Energy, Inc<\/em>., 860 F.3d 131 [4th Cir. 2017]). The employee, who said he was \u201ca lifelong evangelical Christian,\u201d believed that participating would give him the apocalyptic \u201cmark of the beast\u201d even though his pastor disagreed with his interpretation.<\/p>\n The EEOC sued the employer, alleging that the employer\u2019s failure to accommodate the employee\u2019s religious beliefs by using an alternative to the hand scan violated Title VII of the Civil Rights Act of 1964. At trial the jury ruled in favor of the EEOC, and the Fourth Circuit affirmed the decision.<\/p>\n The Fourth Circuit said that theological correctness or general acceptance of a belief was not the criteria for determining whether the belief was legitimate. Instead, the Fourth Circuit said that beliefs should be evaluated only for sincerity. The court wrote, \u201cIt is not [the employer\u2019s] place as an employer, nor ours as a court, to question the correctness or even the plausibility of [the employee\u2019s] religious understandings\u201d (Consol,<\/em> 860 F.3d at 142). (See also Kaite v. Unemployment Compensation Board of Review<\/em> [PA Commonwealth Court, Nov. 29, 2017].)<\/p>\n The Fourth Circuit also said that the fact that the pastor disagreed with his interpretation was irrelevant: \u201c[The employee\u2019s] religious beliefs are protected whether or not his pastor agrees with them. . . . So long as there is sufficient evidence that [the employee\u2019s] beliefs are sincerely held . . . and conflict with [the employer\u2019s] employment requirement, that is the end of the matter\u201d (Consol, <\/em>at 142, 143).<\/p>\n If the Supreme Court decides to adopt this line of reasoning, and the Court\u2019s precedent suggests it will, then the analysis of Mr. Phillips\u2019 religious beliefs will turn on whether or not his beliefs are sincere. If they are sincere, the analysis will end there.<\/p>\n Colorado\u2019s Different Treatment of Cakes—Bad Cakes and Good Cakes<\/strong><\/p>\n Jack Phillips\u2019 refusal to make a wedding cake is not the only Colorado cake case to gain media attention. In 2016 the Colorado Civil Rights Division ruled that Majorie Silva, the owner of Azucar Bakery in Denver, had the right to refuse to make two cakes with anti-gay imagery and derogatory language.<\/p>\n In 2014 Silva told the customer that she would sell him icing and a pastry bag so he could decorate the cake however he wanted, but because she had refused to do the decorating, she was hit with a religious discrimination complaint. She said that the reason she had refused was that the customer\u2019s request was based on \u201cderogatory language and imagery\u201d instead of a religious argument.<\/p>\n