The ghost of Justice Antonin Scalia often hangs over the Supreme Court, perhaps never more so than as the justices struggle with the case of the Christian baker who refused to make a wedding cake for a same-sex marriage.
Scalia often spoke of his strong Catholic faith. But he also believed the courts should not grant religious exemptions to the laws that everyone must follow.
A person's right to religious freedom does not "excuse him from compliance with an otherwise valid law," Scalia wrote in 1990 for a 5-4 majority that included then-new Justice Anthony M. Kennedy. The "political process," not courts, should decide such questions, he said. Although some religious claims may fail, he wrote, "that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself."
Scalia's words and views are revered, especially on the right, but his 1990 opinion looms uncomfortably over the court these days as conservative Christians seek a religious exemption from anti-discrimination laws adopted in liberal states.
Jack Phillips, the owner of Masterpiece Cakeshop near Denver, went to court seeking an exemption from a Colorado civil rights law that requires public businesses to serve all customers. The federal Civil Rights Act forbids discrimination based on race, gender, religion and nationality but not sexual orientation. Only 20 states have joined Colorado in extending anti-discrimination protection to gays and lesbians. No state in the South has adopted such a law.
Phillips says he believes that the Bible restricts marriage to a man and a woman and that it would be sinful for him to help celebrate the marriage of two men by making them a custom wedding cake.
But in his long legal battle, his lawyers have been obliged to argue his case as mostly about the freedom of speech and "expressive conduct." They described him as a "cake artist," rather like a painter or a sculptor. This would be so even if he were making a plain white cake with no words or symbols, they argued.
During Tuesday's argument, the liberal justices said that claim sounds both farfetched and without limits. If a cake maker is engaged in expressive conduct, why not a dress designer, a hairstylist, a chef, an architect or a makeup artist? they asked. The examples were endless. "We would cause chaos" and "undermine every civil rights law" if the court buys that argument, Justice Stephen G. Breyer said.
When the state's lawyer rose to defend the law, the argument shifted abruptly, and the court's conservatives, led by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., focused on religion.
Roberts asked about the Catholic Legal Services: If it offers free legal help, could it be required to help arrange a same-sex marriage? Alito wondered whether Colorado could "compel a religious college to provide married student housing for a married same-sex couple." By their questions and comments, the court's conservatives made clear they believe it is wrong for the government to force a believer to violate his religious conscience.
Before Scalia's 1990 opinion, the high court often granted religious exemptions based on the 1st Amendment protection for the "free exercise" of religion. The justices had long said the government can and must accommodate believers when possible. Most cases involved minority sects. For example, the court said the Amish may not be forced to send their children to high school, and a Seventh-day Adventist may not be penalized for refusing to work on Saturday.
In the most famous case, the court during World War II said the children of Jehovah's Witnesses may not be forced to salute and pledge their allegiance to the American flag. If the court rules for the Colorado baker, its opinion will probably rely on that case, West Virginia vs. Barnette, because it involved both freedom of expression and freedom of religion.
Since the 1990s, however, when Scalia was skeptical of religious exemptions, the ideological sides have shifted. Then, the court's three staunch liberals — Justices William Brennan, Thurgood Marshall and Harry Blackmun — dissented from the ruling in Employment Division vs. Smith, calling Scalia's opinion a "wholesale overturning of settled law" for protecting religious freedom. The case before the court arose when two Native Americans were fired for having used peyote during a religious ceremony. State officials said peyote was classified as an illegal drug, and the liberal justices said it could be viewed like communal wine in church.
These days, by contrast, conservatives including President Trump see "religious liberty" as being under constant threat, and they have called for more legal protection for Christians who object to government policies. The administration joined in support of the Colorado baker. And now, it is the liberals who worry whether people can invoke their personal religious beliefs as grounds for voiding a civil rights law that regulates a public business.
Despite the shift in political thinking, Scalia's opinion stills stands, and it has shaped the law on religious freedom. Congress tried to overturn the ruling in the Religious Freedom Restoration Act in 1993. Adopted on a nearly unanimous vote, it said the "government shall not substantially burden a person's exercise of religion."
But the court, with Kennedy and Scalia again in the lead, struck back in 1997 and ruled the religious freedom law may not be enforced against states and cities. In a case called City of Boerne vs. Flores, they said Congress did not have the power to expand the "free exercise of religion" and apply it to the states.
The federal law remained on the books, however, and resurfaced when conservatives sued to challenge the Obama administration's Affordable Care Act rule requiring employers to provide a full range of contraceptives as part of their health coverage. In Burwell vs. Hobby Lobby Stores, the court ruled in 2014 the owners of the chain of crafts stores were entitled to a religious freedom exemption from the contraceptive rule based on the 1993 federal law. The 5-4 vote found Kennedy and Scalia in the majority.
In recent years, as same-sex marriages became legal, lawyers for the Alliance Defending Freedom went to court seeking exemptions for some Christian conservatives. They sued on behalf of a wedding photographer in New Mexico, a florist in Washington and the baker in Colorado. But they could not simply argue for a religious exemption under the 1st Amendment or under federal law because they were blocked by the pair of Scalia's rulings from the 1990s.
The Supreme Court refused to hear an appeal from the wedding photographer in 2014. But in June, two months after Justice Neil M. Gorsuch filled the seat left vacant by Scalia, the court agreed to hear the baker's case.
Kennedy sounded torn on what to do now. At first, he said it would be an "affront to the gay community" and could encourage businesses to "boycott gay marriages" if the court rules for the Colorado baker.
But 30 minutes later, Kennedy seemed open to doing just that. He said some Colorado officials displayed "hostility to religion." And "accommodation is quite possible," he said. "There were other good bakery shops that were available" to the gay couple seeking a wedding cake, he said.
When Kennedy pressed on, a lawyer for American Civil Liberties Union answered with a surprising twist. What if the Christian baker had to "attend that wedding and help cut the cake?" Kennedy asked.
That's not at issue here, said the ACLU's David Cole. However, "in a future case that involved physical participation in a religious ceremony that an individual deeply opposed, the court might create a new doctrine not governed by Smith," he said, referring to Scalia's 1990 opinion. The court may want to say that "compelling somebody to engage in a religious ceremony" violates their rights to the free exercise of religion, he said.
The chief justice quickly intervened. "Is that a modification of Smith?" he asked. "It sounds like an overruling of Smith."
The exchange suggested the justices are not ready to reconsider their precedents on religion and instead will split 5-4 on the odd question of whether making a wedding cake involves protected free speech.