Having Your Cake and Eating It-Part 1: The Free Exercise Issue

It all started innocently enough, but a 20-second interaction in a bakery in the suburbs of Denver has evolved into perhaps the Supreme Court’s marquee case this term.  In 2012, before the days of Obergfell recognizing gay marriage as the law of the land and when gay marriage was quite illegal in Colorado, Charlie Craig and David Mullins went to Massachusetts, where gay marriage was legal, and got married.  Returning to Colorado, they decided to have a reception to celebrate their nuptials when it was suggested they purchase a cake from Masterpiece Bakeshop.  That establishment is owned and operated by a devout Christian named Jack Philips.  Upon finding out the cake celebrated a gay marriage, he politely informed them he did not do cakes for gay weddings.  In fact, he does not use alcohol in his cakes, nor will he do Halloween themes or make cakes that celebrate a recent divorce.

Upon the rebuke, Mullins posted the incident on Facebook and his cause took on new life.  It was suggested that the gay couple file a complaint with the Colorado Civil Rights Commission, which they did and they prevailed all the way through the Colorado Court of Appeals.  Masterpiece took the case to the Supreme Court where it languished through 15 conferences as a “relist” while similar cases involving photographers and florists were rejected.  In June of this year, the Court took the case.  Some have speculated that Neil Gorsuch cast the deciding vote to accept the case.  However, it may be that as more and more of these instances were popping up, the Court decided to weigh in.

At first glance, this looks like a classic case where one’s religious rights run smack into a case of commercial “discrimination” and gay rights.  In fact, most liberals believe this case was decided long ago in the Heart of Atlanta case over the constitutionality of the Civil Rights Act of 1964.  Some businesses at that time had, admittedly, used religious grounds to deny services to blacks.  The Supreme Court ignored those arguments and life went on.

There is a big difference here.  First, blacks have been considered a “protected class” under the law for a very long time.  Second, there was no doubt that systemic discrimination occurred against blacks in a large swath of the country at the time.  In this case, the Court has never extended “protected class” status on gays- married or otherwise,- nor is there systemic discrimination born by the fact that Craig and Mullins readily found a baker nearby who made them a rainbow-themed cake for their gay reception.  Masterpiece Bakeshop is the exception to the norm rather than the norm.

In this case, there are two issues, both falling under the First Amendment.  The argument is perhaps strongest not under the obvious Free Exercise Clause, but under the Free Speech Clause.  But first, the Free Exercise arguments.  The Left argues that religious exercise must yield to “other foundational values, like freedom from harm and from discrimination.”  Of course, this view ignores convenient facts like the free exercise of religion is a “foundational value” deeper in the fabric of our society and history.  One amicus brief says that denying them this cake is, in effect, denying the couple their dignity of participating on an equal footing in a civil society.  It is poetic hyperbole better left to the likes of Anthony Kennedy.

They will argue that in Employment Division vs. Smith, the Supreme Court ruled  that the free exercise clause of the First Amendment is not violated by generally applicable laws not specifically directed at religion even if those laws substantially burden the ability of people to exercise their religion.   And there is no argument that the Colorado law in question had any religious animus behind it.  Conversely, the Court has ruled that even a religiously neutral law can violate the free exercise clause if the real object of the law is to disfavor religion or if the law as implemented by the state discriminates against religion.  This is the bulk of Philips’ free exercise violation claim.

As proof, he offers up the fact that the Colorado Civil Rights Commission has upheld the right of bakers to refuse to make cakes with an anti-gay marriage message.  As such, he argues, the law is not consistently applied and as part of that inconsistency, the state is steering someone towards a state-preferred message.  Therefore, he argues that the law is discriminatory towards those with deeply held religious beliefs against gay marriage.

While the business has suffered given the notoriety of this case, important facts go unreported.  As a result of the Commission’s order, Masterpiece Bakeshop must “cease and desist,” take remedial action, retrain its staff and file compliance reports documenting each and every denial of service and the reasons for the denial.  Further, there is not a single iota of proof that Philips ever denied any gay patron any service (he even offered other baked goods to the gay couple in question), never hung a sign in his window discouraging gay customers, and never showed any hostility towards any gay person.

It is obvious that if the Supreme Court decrees that the free exercise of religion can never include a right to discriminate, the conflict between religious liberty and anti-discrimination laws disappears in all areas of life.  Meaningful religious exercise, however, necessarily involves the right to distinguish or decide in ways that might otherwise violate the anti-discrimination laws.  In fact, the Court expressly said so in the Hosanna-Tabor decision a few terms back.  The issue is not whether, but when and why discrimination is sometimes a protected constitutional right under the First Amendment.

As stated earlier, Philips argues somewhat that the state is steering him to a preferred message.  Although that argument will be taken up in part 2, in this context there are historical analogies.  In England starting with the Supremacy Act through the Uniformity Act, Test Act, and Corporation Act, the English crown sought to discriminate against people with certain beliefs- namely, Catholics, and Non-Conformists like Methodists, Presbyterians, Baptists and Quakers.  Here, the state is discriminating against people with certain beliefs- namely, those that oppose gay marriage on deeply held religious grounds.

In 17th century England, subjects boarded ships and risked life and limb to cross the Atlantic to settle in the untamed America so they could exercise their religion as they saw fit in their everyday lives free of government interference.  In 21st century America, apparently one has to stop making wedding cakes to do the same.