First Amendment protections of religious freedom were affirmed in a narrowly drafted decision today.
The decision is a welcome move by the Court. But we should not confuse it with a landmark of any sort.
The Court rejected the state of Colorado’s attempt to force Jack Phillips, owner operator of Masterpiece Bakeshops to bake a wedding cake with a congratulatory message on it for a same-sex wedding. This is good news for those of us who support separation of Church and State and individual religious freedom.
However, the Court took this action in a narrowly defined decision that was based on the egregious religious bigotry that the Colorado Civil Rights Commission demonstrated in the way it conducted its hearings on this matter. The Supreme Court decision limits itself to the narrow question of unequal protection under the law and whether or not religious belief is protected by the First Amendment from overt government hostility in this specific case. It stops far short of affirming the right of individual Americans to refuse services based on their religious beliefs.
Both the Ruling and the Writ make clear that the Court will not tolerate direct attacks on a particular faith such as those the Commission members launched against Christianity. But the decision does not address the overall question of how individual religious freedom from government oppression will be balanced against civil rights’ claims of defined groups of people in future decisions.
In other words, the Court ruled that a government agency violates the First Amendment when it acts in accordance with what amounts to an attack against a particular religious faith. The Commissioners used language in the hearing involving the Masterpiece Bakeshop which, to any fair-minded person, was bigoted and an attack on Mr Phillip’s faith.
Here is the pertinent section from the Writ, emphasis mine:
… Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case. Pp. 9–12.
(b) That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.
The Court also noted in its Writ that the Commission’s handling of Mr Phillips’ case was an uneven application of the law, which raises the question of equal protection. Their reasoning was that the Commission had allowed bake shops to refuse to bake cakes with anti-gay messages on them, but that they did not give Mr Phillips the same consideration. Here is the pertinent section about that. Again, the emphasis is mine:
… State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages.
… Another indication of hostility is the different treatment of Phillips’ case and the cases of other bakers with objections to anti-gay messages who prevailed before the Commission. The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips’ willingness to do the same irrelevant. The State Court of Appeals’ brief discussion of this disparity of treatment does not answer Phillips’ concern that the State’s practice was to disfavor the religious basis of his objection. Pp. 12–16.(c) For these reasons, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.
The bottom line of this ruling is that any laws regarding the provision of services and the civil rights of individual citizens must be written and enforced without prejudice. What that means is, basically, that what’s sauce for the goose is also sauce for the gander. If a law requires bake shops to bake cakes for same-sex marriages, it must also require bake shops to bake cakes for anti-gay groups.
More to the point, no law may be enforced in an unequal or unfair manner based on an individual American’s religious beliefs. The law, whatever it is, must be indifferent to the religious beliefs of American citizens. Its enforcement must be the same for everyone.
I think that the major victory in this decision was the clear signal from the Court that First Amendment protections of religious practice free from government intrusion is a right that belongs to individual Americans. This flies in the face of recent claims by the Obama Administration that the First Amendment is limited to corporate faith practices inside church buildings.
However, in this same ruling, Justice Kennedy goes off on a hypothetical riff about the nature of First Amendment rights in which he says that, while clergy clearly have the Constitutional right to refuse to perform gay-weddings, individual citizens may not have similar broad rights of refusal. That’s an important sticking point which leaves the question of whether and to what degree the First Amendment rights to religious freedom apply to individual American citizens, and how much of it is a corporate right held only by organized religious bodies.
The current logic that is being used to attack our religious freedom as individual American citizens is that First Amendment guarantees of religious freedom from government oppression applies only to organized churches operating within church facilities, and not to individual American citizens. That makes it somewhat chilling that Justice Kennedy references this line of reasoning so favorably in this ruling.
It’s important to note that the Court limited this ruling to this specific case only. It stated a number of times that it might rule differently if the circumstances were different.
Here, from the Ruling, is what they said. Emphasis mine:
However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.
The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.
The judgment of the Colorado Court of Appeals is reversed.
It is so ordered.
What this seems to mean is that the Court stands ready to rule differently when the government handles itself in a less prejudiced and sloppy manner. The Court seems to be hinting that what it wants to see is a neat, carefully-crafted set-piece case that will allow it to rule on hypothetical issues without having to mess with the misbehavior of local left-wing bigots. The language in this decision seems to signal that the Court, as it stands now, is eager to place gay people under 14th Amendment protections, along with African Americans.
To read the Ruling, go here.