Wedding cakes and same-sex marriages are back before the Supreme Court, and this time the justices are being asked to rule broadly that the 1st Amendment’s protection of the “free exercise” of religion shields conservative Christians from state civil rights laws.
An Oregon couple who were fined $135,000 for refusing to make a cake for the marriage of two women have asked the justices to take their case. If the court does so, the new conservative majority could significantly change the law on religious liberty and LGBTQ rights. The justices could announce as early as Monday whether they will hear the case.
For nearly three decades, the court has followed a rule set down in a 1990 decision written by a conservative hero, the late Justice Antonin Scalia. Rejecting a claim brought by Native Americans who smoked peyote as part of a religious ceremony, Scalia said that the Constitution’s guarantee of the free exercise of religion did not provide a shield against a “neutral and generally applicable law.” In the peyote case, two men had been fired for using an illegal drug.
But with conservative Christians now claiming their religious rights are under assault, the court’s conservatives have shown a renewed interest in the free-exercise clause.
In the Oregon case, lawyers for Melissa and Aaron Klein said the couple were forced to shut down their Sweet Cakes store in the city of Gresham because of the conflict over their religious beliefs. They asked the court to overrule Scalia’s decision and declare that the Constitution does provide a religious exemption to Oregon’s civil rights law.
Oregon, like California and 20 other states and dozens of large cities, requires public businesses to provide “full and equal” service to all customers without regard to race, sex, religion or sexual orientation.
Their timing looks good.
In January, Justices Samuel A. Alito Jr., Clarence Thomas, Neil M. Gorsuch and Brett M. Kavanaugh suggested they were ready to reconsider how far the free-exercise clause reached. They issued a partial dissent when the court turned down an appeal brought by a football coach who said he was fired for leading prayers on the field after games. The coach unsuccessfully claimed his firing violated his right to free speech. Alito suggested he should have appealed based on his rights to freely exercise his religion.
Scalia’s 1990 opinion “drastically cut back on the protection provided by the Free Exercise Clause,” Alito said in that case, Kennedy vs. Bremerton, noting with seeming regret that the coach had not asked the court to reconsider the earlier decision.
This time, the issue is front and center. Lawyers for the bakers in Klein vs. Oregon Bureau of Labor have asked the court to “revisit” the rule on religious liberty.
The Kleins’ appeal says the court should carve out an exemption for those who refuse “to participate in same-sex marriage rituals that violate their sincerely held religious beliefs.”
Louise Melling, the ACLU’s deputy legal director, said she doubts the court will take up this invitation. “This is about creating a constitutional right to discriminate. Ending discrimination is a compelling state interest, so I don’t expect them to open this door,” she said.
In recent weeks, the court has been unusually hesitant in deciding whether to take up culture war controversies.
An appeal by Indiana, which seeks to enforce a law that would forbid certain abortions, including for a fetus with Down syndrome, has been considered at nine of the court’s weekly closed-door conferences, but the justices have not decided whether to hear the case or deny it (Box vs. Planned Parenthood). Similarly, the justices have repeatedly considered, but not acted on, appeals asking whether federal law does or does not prohibit job discrimination based on sexual orientation or transgender status (Altitude Express vs. Zarda and R.G. & G.R. Harris Funeral Homes vs. EEOC).
In early February, the court by a 5-4 vote agreed to keep on hold a Louisiana law that would strictly regulate abortion clinics. By doing so, however, the court put off to next year a decision on the law itself (June Medical Services vs. Gee).
The issue of wedding cakes and same-sex marriages might be easier for the court to rule on, however, because the issue is a familiar one. Last year, just before Justice Anthony M. Kennedy’s retirement, the court ruled for a Christian baker in Colorado who refused to design a custom cake for the marriage of two men. But Kennedy ruled in a way that applied only to that specific case. Jack Phillips, the baker, had been subjected to “hostility” based on his religion, Kennedy wrote, citing the comments of a state commissioner who said it was “despicable” that some people have “used their religion to hurt others.”
The court’s opinion in that case, Masterpiece Cakeshop vs. Colorado, did not decide the main issue — whether bakers, or, for that matter, photographers and florists, had a 1st Amendment free speech right not to participate in a same-sex marriage. Lawyers for Phillips had argued that designing a cake could be expressive, and the state could not force a baker to send a message in support of a same-sex marriage that violated his religious beliefs. The justices struggled with which jobs qualified as expressive, and they essentially decided not to decide.
But Kennedy was the last of the justices to have signed on to Scalia’s 1990 opinion that had rejected the idea of legal exemptions based on religion. Then, the court’s conservatives were united in their view that Seventh-day Adventists, the Amish, Jehovah’s Witnesses and other members of religious minorities could not claim that their religious rights trumped generally applicable laws.
“We cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct” that conflicts with his or her religious beliefs, Scalia wrote. Doing so “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind,” he said in Employment Division of Oregon vs. Smith.
Many liberals opposed that ruling at the time, and even some of Scalia’s most ardent admirers have raised doubts about it. The peyote decision “remains controversial in many quarters” and appears to conflict with the original meaning of the 1st Amendment, Gorsuch wrote last year. “It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom,” he added.
The case from Oregon began in 2013 when Rachel and Laurel Bowman-Cryer were preparing to marry. They had been together for nearly 10 years and were in the process of adopting two children with special needs. Rachel and her mother went to the Sweet Cakes shop. But when Aaron Klein learned the marriage would have two brides, he said they would not make a cake for them. In a later conversation with Rachel’s mother, he quoted a passage from the Book of Leviticus and its reference to “an abomination” that many religious conservatives read as a condemnation of homosexual conduct.
The two women filed a complaint with the state agency that enforces its anti-discrimination law. An administrative law judge held a hearing and awarded the two women $75,000 and $60,000 in compensation for their emotional suffering. The state commission and the state’s courts rejected appeals filed by the Kleins.
Their appeal to the Supreme Court highlights a dissent by Chief Justice John G. Roberts Jr. on the day in 2015 when the court, by a 5-4 vote, ruled same-sex marriages were constitutional nationwide. It marked the only time Roberts has read a dissent in the courtroom.