We need a Supreme Court decision defending religious liberty. The Cakeshop case wasn’t it.


WASHINGTON (JTA) — The Supreme Court’s much-anticipated decision in the case of the Colorado baker who was penalized because he refused, on religious grounds, to create a cake for a same-gender wedding ceremony must have disappointed both sides.

The baker won, but the majority’s reasoning leaves him unsure whether he may reject a similar request tomorrow.

The court’s ruling also was a setback for the LGBTQ groups that insist that a retail establishment’s statutory duty to service the celebrations of newly recognized sexual-privacy ceremonies prevails over religious conscience. These advocates may still win, however, if and when the court revisits the issue, and it can do so as soon as the next term of court.

The baker’s case presented immensely important constitutional issues for religious observance by America’s Jewish community. It tested whether the legal advances the Supreme Court has granted recently for sexual liberty will trump private religious obligations. Supporters of the Colorado decision censuring the baker view religious observance as secondary to the right to engage in conduct that society used to condemn but now, with Supreme Court approval, have become an integral component of liberty in the United States.

I noted in the amicus curiae brief I filed in the case for a number of Orthodox Jewish organizations that Jewish law prohibits active participation in violations of halachah under the biblical principle of not placing a stumbling block before the blind (“lifnei iver lo titeyn michshol”). The Colorado baker was really invoking this rule against aiding and abetting violations when he refused to take an active role in a gay marriage. Since the gay couple could obtain a similar wedding cake from other bakers (and actually received one free), the legal action against the baker was an assault on religious observance.

The case was argued orally on Dec. 5, 2017, in a session that the Supreme Court extended to accommodate vigorous questioning from the bench. Justice Anthony Kennedy unexpectedly asked the Colorado Civil Rights Commission’s lawyer to comment on a gratuitous slap at religion made by one of his clients. A Colorado commissioner had said publicly that “freedom of religion used to justify discrimination is a despicable piece of rhetoric.” Kennedy pressed the lawyer twice on whether he “disavowed or disapproved” the commissioner’s statement. According to the Supreme Court’s official transcript, the lawyer finally stammered like a reluctant groom: “I … I … I do, yes, Your Honor.”

The commissioner’s remark turned out to be a poison pill for the commission’s conclusion that the baker violated Colorado’s law on public accommodations. Six of the justices agreed with Kennedy’s opinion that the commissioner’s statement (not disavowed, Kennedy noted in his opinion, in its written brief), made when the commission was considering the baker’s case, demonstrated unconstitutional “hostility to religion.”

Moreover, the commission had not condemned three bakers who had turned away a customer who ordered a cake with an anti-gay marriage text. This “disparity in treatment,” said the Supreme Court majority, was “a signal of official disapproval of … religious beliefs” and amounted to unconstitutional “hostility to a religion or religious viewpoint.”

If the Colorado baker now refuses to create a cake for another same-gender couple, the Colorado commission may behave in a way that avoids offending religious belief in public. It can then stand by its earlier ruling, fine the baker and order him to teach his employees to be law abiding. Colorado’s civil rights commissioners will not again make the foolish mistake of publicly insulting religious observance. And since the Supreme Court insists, it presumably will condemn equally all bakers who refuse to create a cake with a message that personally offends them.

The high court pointedly ignored the constitutional argument that had captivated the baker’s lawyers and the Department of Justice, which switched sides and abandoned the Obama administration’s support of the same-gender couple. Rather than claiming that the baker’s religious freedom was infringed by requiring him to participate in a ceremony that violated his religious convictions, the baker’s lawyers maintained in briefs and in their oral presentations that creating a wedding cake was artistic speech that overrides the public accommodations law. That led to unanswerable questions from the justices about hairdressers and chefs. Aren’t their creative efforts entitled to the same speech protection as a baker’s?

There is, to be sure, a lawyerly explanation for the advocates’ emphasis on speech rather than religion. In a highly controversial 1990 decision (Oregon v. Smith), a Supreme Court majority led by the late Justice Antonin Scalia cut the heart out of the Free Exercise of Religion Clause in the First Amendment. In that case, a court majority effectively overruled past precedent and ruled that the constitutional protection for the “free exercise” of religion did not require exemption from a “valid and neutral law of general applicability” — in other words, a law, even one that might impose a burden on religious practice, is constitutional as long as there is a rational or legitimate reason for it.

Justice Kennedy – who had joined the Scalia opinion in 1990 – circumvented this rule when he condemned the Colorado commission’s “hostility” to religion and accordingly vacated its decision. But the time has come – as some friend-of-the-court briefs suggested in the Colorado baker’s case – for the court to invite briefs testing the limits of laws “prohibiting the free exercise” of religion.

A case raising the same constitutional issues as the Colorado baker incident has been pending on the Supreme Court’s calendar since July 14, 2017. It concerns a Washington florist who, while sympathizing with a gay customer who regularly patronized her florist shop, refused on religious grounds to create a flower arrangement for his same-sex wedding. She was found to have violated the state’s public accommodations law.

After the ruling in the baker’s case, lawyers for the florist claimed in a written brief that she, too, was subjected to religious hostility. They asked that her case be reopened in the lower courts to hear such evidence. Her opponents denied the allegations of hostility and want the Supreme Court to refuse to hear her case.

The Supreme Court should, however, grant review and invite the parties and friends of the court to submit briefs on whether the 1990 Oregon v. Smith decision should be overruled and religious freedom restored as a preferred constitutional right.

(Nathan Lewin is a Washington lawyer with Lewin & Lewin LLP who has argued 28 cases before the U.S. Supreme Court. He filed a friend-of-the-court brief in the Colorado baker’s case on behalf of the National Jewish Commission on Law and Public Affairs, or COLPA, and several Orthodox national Jewish organizations.)

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