The U.S. Supreme Court this week sent a powerful rebuke to government officials who would slight religious beliefs they don’t favor. In a case pitting a Christian cake artist against the state of Colorado, 7 of 9 justices ruled in favor of Jack Phillips and Masterpiece Cakeshop on the grounds that the state had violated his constitutional right to religious free exercise when it treated his beliefs with “elements of a clear and impermissible hostility.” While the court did not rule on the free speech claims that Phillips’ attorneys at Alliance Defending Freedom (ADF) had raised, the court declared, “Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.”
Responding to the case, Dr. Jerry A. Johnson, president & CEO of NRB, said, “The Supreme Court was absolutely correct to overturn the clear religious discrimination perpetrated by the state of Colorado against Jack Phillips. A 7-2 ruling is a strong affirmation of the central importance of religious liberty to our nation.”
Justice Anthony Kennedy authored the court’s judgement and, as evidence of a religious freedom violation, he faulted the Colorado Civil Rights Commission for treating the Masterpiece case differently than cases in which at least three other Colorado bakers had refused to provide cakes critical of same-sex marriage based on their own conscience. He also slapped the Colorado Court of Appeals for dealing with Phillips’ objection to this discrimination in a mere footnote that was dismissive of claims against the bakers for refusing “offensive” messages. Kennedy said, “A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness.”
This issue of the other bakers generated a fascinating exchange in concurring opinions authored by Justice Neil Gorsuch and Justice Elena Kagan. Kagan agreed in whole with Kennedy’s ruling, but she suggested that, unlike the other bakers, Masterpiece could still have been found culpable without religious hostility under Colorado’s law. However, Gorsuch countered that Phillips could not have been treated differently than the other bakers. “His religious beliefs are entitled to no less respectful treatment than the bakers’ secular beliefs,” Gorsuch declared.
Debate about the nature of the cake itself, particularly whether it was a form of protected speech, also divided the justices. While the more liberal justices were not sympathetic to the expressive significance of such wedding cakes, Justice Clarence Thomas argued that “a wedding cake needs no particular design or written words to communicate the basic message that a wedding is occurring, a marriage has begun, and the couple should be celebrated.” He believed that Colorado not only violated Phillips’ religious liberty rights, but also his free speech rights. Thomas denounced the effort to compel speech and attacked the idea that a for-profit business somehow has less rights against such coerced speech. In a conclusion using quotes from Justice Samuel Alito, Thomas stated, “[I]n future cases, the freedom of speech could be essential to preventing Obergefell from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’”
Regarding the apparent enforcers of that “new orthodoxy,” Kennedy’s majority ruling reprimanded members of the Colorado Civil Rights Commission for denigrating comments directed at Phillips’ Christian beliefs. For example, one commissioner compared his Bible-based belief on marriage to justifications made for slavery and the Holocaust. That commissioner said, “It is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” On behalf of the high court, Kennedy reacted strongly against such a dubbing of Phillips’ beliefs and called the commissioner’s statement, which was not countered by others, “inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.”
That seven justices would so chastise Colorado’s authorities is particularly noteworthy in light of recent incidents where high profile leaders in the U.S. Senate have attacked Trump administration nominees based on their religious beliefs. In April, Sen. Cory Booker (D-N.J.), known as a rising star in his political party, pressed then-CIA Director Mike Pompeo aggressively in an apparent attempt to have him recant faith-based beliefs about marriage and sexual ethics as a condition for being confirmed as America’s top diplomat. Even as Pompeo declared his equal and respectful treatment of all people, Booker berated Pompeo repeatedly with the question, “Do you believe that gay sex is a perversion?” Moreover, in the last year Sens. Dick Durbin (D-Ill.), Dianne Feinstein (D-Calif.), Bernie Sanders (I-Vt.), and Chris Van Hollen (D-Md.) have also probed nominees’ faith and have appeared to suggest their religious beliefs were grounds for disqualification from public service.
In his statement on the Masterpiece victory, NRB’s Johnson declared, “Politicians who are still intent on currying favor with the well-funded radical Left should take a hard look at this case and correct their course of intolerance before they further trample on America’s fundamental freedoms.”
One may hope that “progressive” politicians will check themselves against such hostility following this week’s ruling. One may also hope that others cases, such as that of floral artist Barronelle Stutzman now on circulation at the high court, will be resolved in favor of respect for faith and freedom. For now, though, Jack Phillips’ case has come to a welcome close. Perhaps Gorsuch summed this up best: “Mr. Phillips has conclusively proven a First Amendment violation and, after almost six years facing unlawful civil charges, he is entitled to judgment.”
By Aaron Mercer, Vice President of Government Relations
Published: June 7, 2018