This morning the United States Supreme Court, by a 7-2 vote in the Masterpiece Cakeshop case, reaffirmed “the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.” The case involves a Colorado baker, Jack Phillips, who declined on religious grounds to create a cake celebrating a same-sex couple’s wedding. The same-sex couple sued the Christian baker under Colorado’s Anti-Discrimination Act alleging that he was discriminating against them based on their sexual orientation. Before it reached the Supreme Court, the Colorado Civil Rights Commission and Court of Appeals had ruled against the baker and rejected his claim that a decision forcing him to create the cake would violate his freedom of speech and religion. I helped write an amicus brief on behalf of several Christian business groups in support of the baker.
Justice Kennedy, writing for the majority of the Supreme Court, wrote that the Commission’s order had to be set aside based on the evidence showing the Commission’s hostility to the baker’s religious beliefs and its failure to neutrally enforce the law. The Commissioners were on record making public statements which implied that Jack’s religious beliefs and those that share them were not welcome in Colorado’s business community. At the time, Colorado had not even recognized same-sex marriages.
Importantly, the Court also pointed out that the Commission had refused to fine other bakers who had declined to make cakes with anti-same sex marriage messages, which they deemed “derogatory” and “hateful.” The Supreme Court found the Commission’s inconsistent rulings to be further evidence that its decision to fine Mr. Phillips was impermissibly based on hostility towards his religious beliefs. The Court reiterated that religious and philosophical objections to gay marriage are protected under the First Amendment—though the Court did not reach Mr. Phillip’s free speech claim.
While this case was a big win for Jack Phillips and his attorneys at the Alliance Defending Freedom, it did not break much new ground. Its limited holding basically reaffirmed the Court’s previous holding in Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) which prohibits the government from imposing regulations that are overtly hostile or inconsistently applied to religious beliefs or persons. As Justice Gorsuch points out in his separate concurring opinion, “when the government fails to act neutrally toward the free exercise of religion, it tends to run into trouble.”
Ultimately, today’s decision reinforces the Supreme Court’s 1990 holding in Employment Division v. Smith that neutrally applied and generally applicable laws can burden religious exercise and survive First Amendment challenges. As Justices Gorsuch and Alito’s concurring opinion points out, “Smith remains controversial in many quarters.” In fact, Smith so weakened the First Amendment’s religious liberty protections that a unanimous Congress was compelled to enact the Religious Land Use & Institutionalized Persons Act in 2000, and many states chose to pass their own Religious Freedom Restoration Acts. These federal and state statutes provide that even general and neutrally applicable laws which burden the free exercise of religion cannot stand unless they are narrowly tailored to protect a compelling governmental interest.
In some of our religious land use cases, we have found sufficient evidence that the decision to deny zoning or building approval was based on overt religious hostility, as in the Baker’s case, allowing us to make a First Amendment claim. More often, however, while religious hostility may lurk beneath a decision, most government officials know better than to justify their votes on such grounds. Thankfully, with RLUIPA’s broader protections, our clients are not required to show overt religious hostility or malice as long as they can show that their religious liberty is being substantially burdened or that they are being treated unequally.
