Cake baker wins on ‘re­li­gious hos­til­ity’ In lim­ited de­ci­sion, jus­tices urge states to care­fully bal­ance rights pro­tec­tions

The Washington Times Weekly - - National - BY ALEX SWOYER

The Supreme Court granted a lim­ited vic­tory last week to a Colorado baker who re­fused to make a cake for a same-sex cou­ple, find­ing the state showed fierce hos­til­ity to­ward his Chris­tian be­liefs when it ruled that he broke the law with his re­fusal.

But the 7-2 de­ci­sion does not es­tab­lish a First Amend­ment right to refuse ser­vices to same-sex couples and will likely lead to more tough le­gal ques­tions for jus­tices as a case in­volv­ing a florist who op­poses same-sex mar­riage hangs in the high court’s purview.

In­stead, the de­ci­sion sug­gested a road map for states such as Colorado, which have pub­lic ac­com­mo­da­tion laws, to use in eval­u­at­ing cases that pit First Amend­ment re­li­gious rights against anti-dis­crim­i­na­tion pro­tec­tions.

Jus­tice An­thony M. Kennedy, writ­ing the lead opin­ion in the case, said states can re­quire peo­ple to serve all cus­tomers equally re­gard­less of sex­ual ori­en­ta­tion as long as they jus­tify it through law and don’t show an­i­mus to­ward re­li­gion.

“The del­i­cate ques­tion of when the free ex­er­cise of his re­li­gion must yield to an oth­er­wise valid ex­er­cise of state power needed to be de­ter­mined in an ad­ju­di­ca­tion in which re­li­gious hos­til­ity on the part of the state it­self would not be a fac­tor in the bal­ance the state sought to reach,” Jus­tice Kennedy wrote.

“That re­quire­ment, how­ever, was not met here,” he said. “When the Colorado Civil Rights Com­mis­sion con­sid­ered this case, it did not do so with the re­li­gious neu­tral­ity that the Con­sti­tu­tion re­quires.”

The rul­ing also seemed to set lim­its on how far states can go in forc­ing nondis­crim­i­na­tion.

Jus­tice Kennedy said a priest or min­is­ter can­not be forced to per­form a mar­riage or cer­e­mony that his faith would not sanc­tion, but he stopped there — pro­vid­ing no guid­ance on whether a florist with re­li­gious ob­jec­tions to same-sex mar­riage could de­cline to pro­vide ar­range­ments for a same-sex cer­e­mony.

But he said there will be lim­its and it will be up to fu­ture cases to test where the lines are drawn.

Jack Phillips re­fused to bake a wed­ding cake for Dave Mullins and Char­lie Craig in 2012, be­fore same-sex mar­riage was le­gal in Colorado and be­fore a 2015 Supreme Court opin­ion es­tab­lished a na­tional right to same­sex mar­riage.

Mr. Phillips ar­gued that as a Chris­tian, he could not be forced to cre­ate a cus­tom wed­ding cake for a ho­mo­sex­ual cou­ple. He said forc­ing him to do so would in­fringe his First Amend­ment rights of free ex­pres­sion as an artist.

He did, how­ever, say he would sell a non­wed­ding cake to the cou­ple.

Colorado said his stance broke the state’s pub­lic ac­com­mo­da­tion law pro­hibit­ing busi­nesses from re­fus­ing ser­vice to any­one based on re­li­gion, race, sex­ual ori­en­ta­tion and na­tional ori­gin.

Dur­ing pro­ceed­ings be­fore the state’s civil rights com­mis­sion, one com­mis­sioner com­plained that free­dom of re­li­gion had been used to “jus­tify all kinds of dis­crim­i­na­tion through­out his­tory, whether it be slav­ery, whether it be the Holo­caust.” The com­mis­sioner called Mr. Phillips’ be­liefs “one of the most de­spi­ca­ble pieces of rhetoric.”

Jus­tice Kennedy said those state­ments un­der­mined the state’s case against Mr. Phillips.

“The Civil Rights Com­mis­sion’s treat­ment of his case has some el­e­ments of a clear and im­per­mis­si­ble hos­til­ity to­ward the sin­cere re­li­gious be­liefs that mo­ti­vated his ob­jec­tion,” Jus­tice Kennedy wrote in the opin­ion.

Those on both sides of the same-sex mar­riage de­bate had been watch­ing the case.

Gay rights groups treated it as a loss. They said they hoped the jus­tices would de­liver a clear state­ment of sup­port for pub­lic ac­com­mo­da­tion laws.

“This case was never about cake; it’s about whether re­li­gion, or speech that has a re­li­gious view­point, can over­ride long-stand­ing anti-dis­crim­i­na­tion law,” said Can­dace BondThe­ri­ault, se­nior coun­sel at the Na­tional LGBTQ Task Force.

But Kris­ten Wag­goner, an at­tor­ney with Al­liance De­fend­ing Free­dom, which rep­re­sented Mr. Phillips, said the court rightly con­demned re­li­gious an­i­mus by gov­ern­ment of­fi­cials in Colorado.

“Tol­er­ance and re­spect for good-faith dif­fer­ences of opin­ion are es­sen­tial in a so­ci­ety like ours. This de­ci­sion makes clear that the gov­ern­ment must re­spect Jack’s be­liefs about mar­riage,” she said, sug­gest­ing that the case’s im­pli­ca­tions reach be­yond Mr. Phillips.

In­deed, Jus­tice Kennedy’s opin­ion leaves courts much to work out for where to draw lines.

Other same-sex wed­ding cases are wind­ing their way through the courts, in­clud­ing one in­volv­ing a florist who de­clined to work a same-sex wed­ding in Wash­ing­ton state.

The Supreme Court is still de­cid­ing whether to hear that case.

A case in Oregon in­volves Aaron and Melissa Klein, two bak­ers who are con­test­ing penal­ties levied against them af­ter they re­fused to make a cake for a same-sex wed­ding.

Mr. Phillips, mean­while, is not yet in the clear to make wed­ding cakes again. Ms. Wag­goner said Al­liance De­fend­ing Free­dom is still talk­ing through the court’s opin­ion with him and fig­ur­ing out his next steps.

“Jack is very re­lieved. He is de­lighted, and he is just tak­ing it in right now. It’s been a long six-year bat­tle where his fam­ily busi­ness and in­come was hang­ing in the bal­ance,” she said.

Robert Tut­tle, a law pro­fes­sor at Ge­orge Wash­ing­ton Univer­sity, said the de­ci­sion in Mr. Phillips’ fa­vor was not a land­mark for re­li­gious lib­erty ad­vo­cates.

“It is in fact a de­ci­sion that has more to do with process than with sub­stance be­cause Kennedy, cer­tainly taken along with Breyer and Ka­gan, all be­lieve that the state has a suf­fi­cient in­ter­est to pro­tect the rights of gay peo­ple to ac­cess pub­licly avail­able ser­vices,” Mr. Tut­tle said.

Louise Melling, deputy le­gal di­rec­tor with the Amer­i­can Civil Lib­er­ties Union, which rep­re­sented Mr. Mullins and Mr. Craig, said the court’s de­ci­sion still up­holds the core prin­ci­ple that busi­nesses must be open to all.

“The court re­versed the Master­piece Cakeshop de­ci­sion based on con­cerns unique to the case but reaf­firmed its long­stand­ing rule that states can pre­vent the harms of dis­crim­i­na­tion in the mar­ket­place, in­clud­ing against LGBT peo­ple,” said Ms. Melling.

Al­though the rul­ing was not what he wanted, Mr. Mullins said, he and Mr. Craig will con­tinue to fight for LGBT rights.

“We are dis­ap­pointed with this rul­ing, but we want to thank the state of Colorado for stand­ing by us through­out this en­tire process,” Mr. Mullins told re­porters.

Jus­tice Ruth Bader Gins­burg dis­sented from the rul­ing, say­ing she didn’t think the Colorado com­mis­sion demon­strated suf­fi­cient an­i­mus to­ward Mr. Phillips’ re­li­gious be­liefs.

AS­SO­CI­ATED PRESS PHO­TO­GRAPHS

Jack Phillips won his high court case, but the 7-2 de­ci­sion does not es­tab­lish a First Amend­ment right to refuse ser­vices to same-sex couples.

Char­lie Craig (fore­ground) and David Mullins said they were dis­ap­pointed but would con­tinue to fight for LGBT rights.

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