Monday, June 4, 2018
After the U.S. Supreme Court agreed to hear the case of a Colorado baker who refused to make a cake for the marriage of a gay couple, nearly 100 “friend of the court briefs” were filed by groups on every side of the political and religious spectrum, including the Public Rights/Private Conscience Project at Columbia Law School
Professor Katherine Franke is the Sulzbacher Professor of Law, Gender and Sexuality Studies at Columbia University. Elizabeth Reiner Platt is the Director of the Public Rights/Private Conscience Project. Below, they answer 5 key questions regarding the judgment the Supreme Court of the United States delivered this morning in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.
A version of this Q & A may be accessed from Columbia University News, here.
Q: How did the Supreme Court decide the Masterpiece Cakeshop case today?
A: Justice Kennedy ruled for a 7-2 majority that principles of religious liberty must be harmonized with principles of equality. The Court’s ruling is quite narrow, actually, turning on the fact that some members of the Colorado Civil Rights Commission (the body that ruled on the case in the first instance) made statements that the Court thought demonstrated hostility toward religion. So Justice Kennedy framed the issue as one of state-based discrimination against people who hold particular religious views, not as about the rights of same-sex couples or LGBT rights more generally.
Q: What should we make of the way the Court framed the issue?
A: Many people were disappointed to see the Court rule in favor of Jack Phillips, the Christian baker who refused to bake a wedding cake for two men because of his religious beliefs. They see the Court’s opinion as a defeat for the rights of LGBTQ people. It’s important to recognize, however, that the opinion does not actually limit antidiscrimination law. The Court explained, “It is a general rule that [faith based] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
In fact, the opinion contains soaring language recognizing the importance of gay rights: “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason, the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”
Q: You wrote a “friend of the Court” brief in the case, does today’s decision reflect the arguments you made?
A: The Public Rights/Private Conscience Project and Muslim Advocates wrote a brief in this case on behalf of 15 religious minority and civil rights groups, arguing that religious liberty principles must be harmonized with equality principles, and that the rights of religious objectors find their limit when they undermine fundamentally important equality principles, such as Colorado’s anti-discrimination law. We took the position that these are mutually reinforcing values, and we are pleased to see that the Court’s decision in Masterpiece Cakeshop embraces this approach, despite setting aside the ruling against Jack Phillips.
For example, the Court found that while a religious exemption allowing clergy to decline to perform a same-sex wedding may be appropriate “as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”
Q: There are many similar cases making their way to the Supreme Court, where business owners have sought a religious exemption from complying with anti-discrimination laws. How does today’s decision in Masterpiece Cakeshop affect those other cases?
A: None of those other cases include evidence of any bias against faith-based objectors, as was the case in Masterpiece Cakeshop. So the big questions these cases raise— can a person’s sincerely held religious beliefs be used to avoid compliance with anti-discrimination laws— remains unanswered. There were, however, some important signs in Justice Kennedy’s decision today that point in the direction that religious objectors may not win in those cases. The Court cited approvingly a case from the 1960s that found that a restaurant owner could not deny service to African Americans even if he had a sincerely held religious reason for doing so. So that principle remains as an important limit on religious liberty rights in contexts where overarching equality principles would be undermined by the overly broad deference to religion.
Q: What’s at stake in the tension between religious liberty and LGBTQ equality?
A: There are two very radical ideas lying behind Jack Phillips’ legal claim here – both of which originate with his lawyers, the Alliance Defending Freedom. The first is to establish the idea that some constitutional rights are more important than others. In their view religious liberty rights are more fundamental than any other rights, and thus should occupy the top tier of constitutional protection. The rights of LGBT people, women, people of color and others, in their view, should be seen as second tier, lower priority rights, and should yield when in conflict with religious liberty. This approach to constitutional law derives from something we call “natural law” – that God’s law is supreme and no man-made law can be superior to God’s law. This amounts to a radical theocratization of the constitution, a document that was intended to be an adamantly secular social contract. The second idea is one that ideological conservatives have been committed to for generations: that the government cannot, indeed may not, tell business owners who they can serve and how they can run their businesses. These folks objected to civil rights laws that prohibited race discrimination by businesses in the 1960s and have never accepted the fact that a business must serve all people, regardless of race, religion or sexual orientation, for instance. They are using religion-based resistance to same-sex marriage in order to weaken the larger national commitment to enforcing non-discrimination laws in business settings. In this sense, the Masterpiece Cakeshop case is the logical next step after the Hobby Lobby case, where a business owner objected to the federal government mandating the kind of employee benefits it had to provide.