Religious liberty battle still rages
Supreme Court wrestles with effects of decision allowing same-sex marriages
It’s been nearly two years since the Supreme Court said gay and lesbian couples have the right to marry. What it didn’t say was whether bakers, florists, printers and photographers could be forced to participate.
Now, it seems, the court may be tied in knots over the mundane aspects of tying the knot.
For three months, through a dozen private conferences, the justices have had on their agenda the case of Jack Phillips, cake artist. The Colorado baker, owner of Masterpiece Cakeshop, refuses to perform his artistry for same-sex couples on religious grounds. For that, he has lost a series of challenges and has taken his case to the high court.
The justices could agree to hear his case. They could deny it, as they did a similar challenge from a New Mexico photography studio in 2014, when same-sex marriage was limited to some states. Or they could wait for new developments — another case, perhaps, or even another justice. To date, they’ve kept mum.
“We’re in uncharted territory, and we just have to see how it plays out,” says Jeremy Tedesco, Phillips’ lead counsel at the conservative Alliance Defending Freedom, which specializes in religious liberty issues. The delay, he says, “shows that the case is being taken seriously.”
If the court was going to hear the case next term, it presumably would have decided that by now. It takes only four votes to do so — but five to win. More likely is that the conservative justices aren’t sure they can get five votes, so they aren’t taking the case — but one or more of them is writing a dissent that could further illustrate divisions over religious freedom.
President Trump was elected with the support of religious believers who felt marginalized by both the Obama administration and the Supreme Court, which legalized same-sex marriage in 2015, struck down abortion restrictions in 2016 and has sought a compromise on Obamacare’s mandated insurance coverage of birth control.
But the executive order on religious freedom that Trump signed last month didn’t go as far as some wanted. It stopped short of providing exemptions from nondiscrimination laws to people and groups opposed to same-sex marriage, abortion and other issues.
Enter the Supreme Court, with Justice Neil Gorsuch filling the seat left vacant by the death of Justice Antonin Scalia last year. It has a 5-4 majority on most religious liberty issues — but not when it comes to gay rights and abortion. In those cases, Justice Anthony Kennedy has sided with the court’s four liberals.
“This is all about Kennedy,” says James Esseks, who directs the gay rights agenda for the American Civil Liberties Union. “It could be they’re waiting for Kennedy to retire.”