By Senior Campaign Agent Megan Field
Religious freedom is a central value of the American constitution, which is embodied in the first amendment. This states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Historically, this value has been hailed as the key to a harmonious society. For example, Thomas Jefferson extolled the virtues of the separation of church and state as a means of ensuring equal right to free conscience, whilst George H.W. Bush credited it as the reason for the vibrancy of American society. Despite this, the boundaries of religious liberty are not as clear cut as such rhetoric would have us believe; the central question is how far this right extends when it comes into conflict with other reasonable values in a pluralistic society.
On 4th June 2018, the Supreme Court offered a 7-2 ruling in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. Dating back to 2012, this case concerned a baker in Colorado, who refused to bake a wedding cake for a gay couple. Jack Phillips argued that this was an expressive act which would amount to “compelled speech” in favour of same sex marriage, and as such violate his religious principles. In response, the couple in question, Charlie Craig and David Mullins, took their case to the Colorado Civil Rights Commission as they believed Phillips had violated state anti- discrimination law; the commission ruled in the couple’s favour. Subsequently, Phillips took the case to the Supreme Court, and won. On first glance this appears to be a win for religious liberty, and a step back for LGBTQ equality- but in reality, the answer is more complex.
Notably, this is not the broad ruling many proponents of religious liberty were hoping for; the main argument advanced by Jack Phillips was that the first amendment prohibition on compelled speech exempts businesses from providing their product when it objects to doing so. Unfortunately for him, the court approached it from a solely procedural angle, emphasising the failings of the Commission to treat the case with “neutral and respectful consideration”. Justice Anthony Kennedy stressed in the majority opinion that commissioners repeatedly implied that “religious beliefs and persons are less than fully welcome in Colorado’s business community.” In this way, the court offered no maximalist ruling in favour of religious liberty, but rather highlighted the conflict between the equal worth and dignity of gay persons and gay couples, and the protected nature of “religious and philosophical objections” under the first amendment. Crucially, such protections do not allow business owners to deny protected persons equal access to goods and services. So whilst the LGBTQ community may have lost this particular battle, they have arguably won the war; the opinion left open the possibility that in future cases sincere religious beliefs may have to yield to the state’s interest in protecting the rights of same sex couples.
It goes without saying that not all on the bench were satisfied with the ruling; Ruth Bader Ginsburg wrote a scathing dissenting opinion. To support the premise that the Colorado commission had shown hostility to religion in the past, Kennedy cited a 2014 case in which the commission had supported bakery’s rights to refuse to make a cake displaying anti gay marriage decorations. For Ginsburg, these two cases were not comparable as in the latter the baker would have refused to make the cake regardless of who had asked. In Masterpiece, the refusal was made solely on the fact that the couple were homosexual, and as such was blatant discrimination.
Particulars of the case aside, it is evident that such disputes revolve around how “liberty” is defined. Whereas negative liberty is the freedom from interference, positive liberty is the freedom to pursue your own conception of the good life- whether this be religious or secular. When arguing that baking the cake would hinder his liberty, Phillips meant that it would violate his particular conception of positive liberty, as opposition to same sex marriage is part of his religious view of the good. Whether the state have the ability to interfere in any given instance is a question of negative liberty. Allowing a business to refuse service to gay people getting married is a slippery slope to other exemptions, such as refusing service under any situation on the grounds that assisting gay relationships will inevitably lead to some couples getting married. Given that any line which is drawn would be unavoidably arbitrary, this narrow ruling is a win as it does not rule out justified intervention in similar cases in the future.
It is unclear what implications this will have for future cases; by avoiding a one size fits all ruling the court has in effect demanded that all sides go home and work out policy accommodations at both the state and the local level. The opinions joined by Ginsburg, Breyer, Sotomayor and Kagan resisted any broader claims that religious liberty should override anti- discrimination laws, so even if the court was taken over by a Justice such as Gorusch who is in favour of broader religious liberty, it is unclear whether there would be enough votes to sustain it. This said, President Trump recently signed an executive order to ensure faith based organisations have equal access to government funding, and an equal right to exercise deeply held beliefs, so the road ahead is far from certain. Given the fact that this narrow ruling largely excluded any discussion of freedom of speech- questions such as whether baking a cake is even a form of speech remain unanswered.
For all this uncertainty, common sense dictates that a pluralistic society cannot allow government to promote any particular conception of the good, and therefore such cases are vital to striking a balance between banning anti LGBTQ discrimination and protecting people’s religious beliefs.
Sources and Further Reading
- Sarah Ruiz Grossman, “The Key Part Of RBG’s Dissent In The Supreme Court ‘Cakeshop’ Case”, Huffington Post (5th June 2018
- David Cole, “I represented the wedding cake couple. We lost a battle but won the war.”, The Washington Post (4th June 2018)
- John Sides, “Still trying to understand the wedding cake case? Here are your answers”, The Washington Post (6th June 2018)
- German Lopez, “Why you shouldn’t freak out about the Masterpiece Cakeshop ruling”, Vox (4th June 2018)
- Evan Gerstmann and Jonathan Rauch, “In Masterpiece, Kennedy Solidifies His L.G.B.T. Legacy”, The New York Times (6th June)
- David Mislin, “Why the Supreme Court’s ‘gay wedding cake’ ruling won’t resolve religious freedom issues”, The Conversation (June 4th 2018)
- Amy Howe, “Opinion analysis: Court rules (narrowly) for baker in same-sex-wedding-cake case”, SCOTUS blog” (4th June 2018)
- Linda Greenhouse, “How the Supreme Court Avoided the Cake Case’s Tough Issues”, The New York Times (7th June 2018)
- Katy Steinmetz, “What the Supreme Court’s Masterpiece Cakeshop Decision Didn’t Change”, TIME (7th June 2018)
- Mark R Reiff, “A philosopher argues why no one has the right to refuse services to LGBT people”, The Conversation (26th June 2017)
Image: Ted Eytan @flickr