May 31, 2017
Two of the most precious rights Americans possess are the right to express themselves freely and the right to practice their religion as they see fit. Both are enshrined in the First Amendment.
But these rights are not absolute, and sometimes may clash with a duty toward others. The Supreme Court is now considering taking up a case that may test these limits, Masterpiece Cakeshop vs. Colorado Civil Rights Commission.
The case stems from a July 2012 incident at the Masterpiece Cakeshop. Charlie Craig and David Mullins asked Jack Phillips, who owned the cake shop, to create a custom wedding cake to celebrate their same-sex marriage. Phillips refused, saying he didn’t want to promote a same-sex wedding due to his religious beliefs.
Craig and Mullins filed a complaint with the Colorado Civil Rights Commission. The Commission decided against Phillips, declaring he had discriminated on the basis of sexual orientation.
The Commission ordered the cake shop to change its policies, give its staff training on discrimination, and provide quarterly reports for two years regarding steps taken to comply with the order.
The Colorado Court of Appeals upheld the decision and the Colorado Supreme Court declined to hear the case. Last year, Phillips petitioned the Supreme Court to take the case, claiming the Colorado ruling violates the free speech and free exercise clauses of the First Amendment.
The court may make its decision any day regarding whether or not to hear the case.
John Eastman, a professor and former dean at Chapman University’s School of Law, believes the free speech argument is strong because Phillips’ work involved “expressive conduct.”
“Whether it’s a photographer, or a cake maker, or a t-shirt designer,” he notes, “they’re engaged in expressive activity,” which is covered by the First Amendment. In fact, he said, in the case of “t-shirts or language on a cake, it’s actual speech.”
But Erwin Chemerinsky, dean of the University of California at Irvine School of Law, counters that the expressive activity comes from the customers.
“If I choose the words on my cake, I’m engaging in expression,” he said. “The baker is simply putting my words on a cake.”
Chemerinsky said that “even if this is about speech,” that doesn’t mean the government can’t intercede. And, in this case, “the interest in preventing discrimination outweighs” other interests.
For instance, he said, the baker would lose in court if he were against interracial marriage and won’t bake a cake for an interracial couple.
Eastman suggests we “shift the facts” and imagine a “white racist who wants an African-American baker to bake a cake celebrating the Ku Klux Klan.” If the courts tried to claim creating the cake “doesn’t implicate free speech rights, people would be howling.” Phillips, Eastman said, was willing to serve homosexuals in his shop, he just didn’t want to be forced to support their beliefs.
As for the related free exercise of religion argument, Chemerinsky said that under the Supreme Court decision Employment Division v. Smith (1990), state law—such as Colorado’s anti-discrimination laws—may limit what people claim is their religious right as long as the statutes are “neutral laws of general applicability” and not aimed at religion.
Eastman agrees that the Smith ruling makes the free exercise argument a tougher sell, though he does wonder, with Justice Scalia—who authored the opinion and is no longer on the Court — if it isn’t time to revisit this precedent.
The general feeling is that the court will not take up the Masterpiece Cakeshop. The justices have had this case up for consideration an astonishing 16 times without putting it on the docket. Some experts believe the justices are waiting – before they drop the case – for one (or more) of the justices to write a dissent against denying the petition.
There’s a good reason the Court would want to leave it alone, according to Professor Chemerinsky. They’re worried about “opening the door to people discriminating in the name of religion.”
But if the case is heard, experts said, it will likely be a blockbuster. Eastman believes it could be bigger than the Hobby Lobby opinion a few years back, which allowed a company to be exempt from a contraceptive mandate due to religious objections. That case was limited in scope, but if the court ruled in favor of Phillips, it could mean there’s a constitutional right that would trump numerous statutes across the nation.
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