Columns Law & Court Mark Silk: Spiritual Politics Opinion

The lessons of the Masterpiece Cakeshop case

Lydia Macy, 17, left, and Mira Gottlieb, 16, both of Berkeley, Calif., rally outside of the Supreme Court on the day of the hearing for the Masterpiece Cakeshop v. Colorado Civil Rights Commission case, on Dec. 5, 2017, in Washington. (AP Photo/Jacquelyn Martin)

(RNS) — Let’s start with with the lesson for culture warriors on the left: Religious objections to state policies have to be handled without prejudice.

Seven of the Supreme Court’s nine justices, liberals and conservatives, agreed that the Colorado Civil Rights Commission acted prejudicially in handling the complaint of a gay couple who were refused a wedding cake by Jack Phillips, proprietor of the Masterpiece Cakeshop in the Denver suburb of Lakewood. Most egregiously, one commissioner declared:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

As a result, Justice Anthony Kennedy concluded, writing for the court, the commission had failed to consider the case with “the religious neutrality that the Constitution requires.”

There is no doubt that, in America today, religious liberty is being advanced as part of a cultural —indeed, a partisan political — agenda. Nevertheless, sincerely held religious beliefs cannot be denigrated and dismissed by government officials. Social liberals will do well to bear in mind that the basic constitutional right of free exercise does in fact extend to beliefs they may find unconscionable.

Now for the lesson for culture warriors on the right: Religious free exercise does not trump anti-discrimination laws.

Yes, wrote Kennedy, also the author of the court’s decision approving same-sex marriage, “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

But “it is a general rule,” the opinion continued, “that such 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.”

Here it’s worth noting that while the ruling didn’t definitively answer core issues of free exercise of religion, it did do something. The justices appear to have strengthened their neutrality standard for free exercise cases.

In Employment Division v. Smith (1990), the court held that “neutral laws of general applicability” could not be challenged on free exercise grounds. Three years later, in Church of Lukumi Babalu Aye v. Hialeah, it determined that a law that is neutral on its face can nevertheless violate the free exercise clause if it is shown actually to target a particular religious practice. On Monday, the court made clear that a law has to be not only neutral itself but also “neutrally applied.”

That clarification in itself suggests that, if Colorado’s ban on discrimination against gays and lesbians had been handled nonprejudicially, the decision could easily have gone the other way.

Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission erects a stop sign in front of social conservatives who would like to extend free exercise to exempt believers not only from anti-discrimination laws but other (possibly) protected forms of expression, like creating wedding cakes.

At least, it’s a stop sign for as long as the court remains in its current configuration.

About the author

Mark Silk

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college's Leonard E. Greenberg Center for the Study of Religion in Public Life. He is a Contributing Editor of the Religion News Service

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