Over a three-day period, 47 “friend of the court” briefs suddenly clogged the inbox at the U.S. Supreme Court regarding the most important religious liberty case of this term -- if not of the coming decade. This is a crucial First Amendment showdown.
Almost all these briefs opposed Colorado’s use of an anti-discrimination law against Masterpiece Cakeshop for refusing to provide the cake for a same-sex wedding.
The immediate issue is the fate of certain religious bakers, florists, photographers, Orthodox Jewish catering halls and the like. In a parallel case, Oregon fined a bakery $135,000, demonstrating government’s power to penalize dissenters or put them out of business. Beyond that lie important rights claims by conscientious objectors that the Supreme Court did not address when it legalized gay marriages nationwide in 2015 (.pdf here).
The Cakeshop’s pleas for freedom of religion, conscience, and expression are backed in briefs from the Trump Administration, 11 Republican U.S. Senators and 75 House members, 20 of the 50 U.S. states led by Texas, a host of social conservative and “parachurch” agencies, and America’s two largest religious bodies (Catholic Church, Southern Baptist Convention).
Yet to be heard from are “mainline” Protestant and non-Orthodox Jewish groups that support the gay cause.
This past week the court received briefs from the American Civil Liberties Union (.pdf here) on behalf of the gay couple and from Colorado officials (.pdf here). Repeating past contentions, the briefs contend that religious liberty claims cannot justify exemptions from anti-discrimination laws that are “neutral” and “generally applicable,” whether religious or secular in motivation. As Colorado sees things, the Constitution offers no support for a business “to treat a class of people as inferior simply because of who they are.”
Whenever news about the First Amendment erupts, The Religion Guy first asks WWDD? That is, What Will Douglas Do? -- referring to Douglas Laycock, distinguished professor of law at the University of Virginia and a prime source on our beat. So file this: firstname.lastname@example.org, 434-243-8546.
No specialist on America’s law of religion outranks Laycock, who's a principled champion of both church-state separation under the Constitution’s “establishment of religion” ban and its guarantee of “free exercise” of religion. He also supports gay marriage. Thus, he sometimes backs the so-called “liberal” side and sometimes the “conservative.”
This time around (.pdf here), Laycock lands squarely behind the Cakeshop, as counsel for the 179-chapter Christian Legal Society, joined by the National Association of Evangelicals, Lutheran Church-Missouri Synod, Church of Jesus Christ of Latter-day Saints (“Mormons”) and Judaism’s “Modern Orthodox” branch.
Laycock filed alongside Thomas C. Berg of the University of St. Thomas. Prior to the gay marriage ruling, these two professors wrote a law review article advocating freedom for both these marriages and for religious conscience, a balancing act they now repeat in the Cakeshop case. Their brief cites the Bible, James Madison (from 1785) and 31 court precedents, posing significant points as follows:
The baker, Jack Phillips, does not discriminate and gladly serves gay customers except for weddings. Whether or not the state or the gay couple thinks so, the baker sees weddings as “inherently religious,” Colorado demanded participation in what he believes is sin and expected him to “repeatedly violate his conscience or permanently abandon his occupation.”
Then this: Colorado violated not only religious freedom but the “establishment of religion” prohibition, because it forced Phillips’ “participation in a religious exercise,” something the Supreme Court forbids.
Yes, the baker’s refusal was an injury to the couple, but “tormenting” a dissenter’s conscience is also an injury. The balance between these conflicting “hardships tilts heavily” toward Phillips because the state ordered him to sacrifice his personal values and identity while the gay spouses “live their own lives by their own values” without interference (and could have found "ample willing providers" of cakes elsewhere).
Journalists note: A curious aspect is that Colorado upheld conscience claims on the opposite side when three bakers -- Azucar, Gateaux Ltd., Le Baker Sensual -- refused droll customer requests for specialty cakes to proclaim biblical opposition to gay sex.
Watch www.scotusblog.com for the forthcoming filings to back the gay couple’s cake quest, and mark your calendars for walkups and follow-ups as the high court hears this case December 5.