While the focus of the legal world this past month has been on major rulings coming down from the highest court in the land — decisions on Obamacare, religious liberty, and college athletics, among others — conservatives’ favorite baker has been thrown back into religious liberty limbo.
On June 15, a Denver district court ruled that Jack Phillips, the beleaguered owner of Masterpiece Cakeshop in suburban Denver, had broken Colorado’s anti-discrimination laws because he wouldn’t violate his religious beliefs and bake a theme cake for a man celebrating his alleged transition into a woman.
Hang on a second. Didn’t we just do this?
You’re forgiven for thinking so. In 2018, the Supreme Court ruled in a 7-2 decision that this same Jack Phillips could legally refuse to bake a wedding cake for a same-sex couple because homosexual marriage violated his religious beliefs.
But the Court trod the narrowest path possible to arrive at that decision, a path so faint it may never be found again. The Court did not decide that the Colorado Civil Rights Commission had denied Phillips his religious liberty per se, but that the commission had been too mean when they considered the case.
Here’s what one commissioner said about the Phillips case:
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 use their religion to hurt others.
While it is gratifying to see a lefty punished for playing the Nazi card, the Court didn’t do defenders of religious liberty any favors with its constricted ruling. By basing its decision on the commission’s denial of a “neutral and respectful consideration of his [Phillips’s] claims” and an attendant hostility to religion, the Court provided Phillips only transient and limited justice and left open a hole in the constitutional wall protecting Americans’ religious liberties.
Even before the Supreme Court decision came down, Autumn Scardini, an activist attorney in Denver, ordered from Phillips a custom “gender transition celebration cake” — blue cake with pink frosting, in case you’re interested — which Phillips, citing religious objections, refused to make. She took her complaint to the Colorado Civil Rights Commission; Phillips sued, claiming he was being targeted for his religious beliefs. The case was resolved in March 2019 when the civil rights panel and Phillips mutually agreed to drop legal action.
Scardini didn’t like that, so she sued again, this time in federal district court. This one gained traction in the courts, and on June 15, 2021, a district judge slammed Phillips with a $500 fine for putatively violating the state’s anti-discrimination laws. The cakemaker plans to appeal.
Kristen Waggoner, general counsel at Alliance Defending Freedom, the group that has defended Phillips since he burst into the religious-freedom world in 2012, commented, “In this case, an activist attorney demanded Jack [Phillips] create custom cakes in order to ‘test’ Jack and ‘correct the errors’ of his thinking, and the activist even threatened to sue Jack again if the case is dismissed for any reason. Radical activists and government officials are targeting artists like Jack because they won’t promote messages on marriage and sexuality that violate their core convictions.” She said the case represents a “disturbing trend: the weaponization of our justice system to ruin those with whom the activists disagree.”
Life would be less traumatic for Phillips — and for other bakers, florists, and wedding photographers — if the Supreme Court had ruled more broadly in the Cakeshop case, protecting religious liberty outright.
The Court had another bite at the apple when Fulton v. City of Philadelphia came before it last fall. But, in a decision handed down in June, it kicked that can down the road as well.
A Catholic adoption agency in Philadelphia had its relationship with the city’s Department of Human Services terminated because, in violation of a city anti-discrimination provision, it refused to consider placement of children with same-sex couples since doing so goes against Catholic doctrine. Plaintiffs in the case asked the justices to rule on overarching religious-liberty doctrine to overturn a major 1990 court case, Employment Division v. Smith, that for 30 years has given governmental authorities on all levels expansive constitutional freedom in judging religious liberty cases.
Prior to Smith, the government could not place a burden on the free exercise of religion unless it could show a compelling interest, and any burden it imposed had to be done “in the least restrictive means possible.” The Smith decision held that in “laws of general applicability,” that is, laws that apply equally to everybody, the government need not show a compelling interest at all but only that religious behavior wasn’t specifically targeted by the law.
Because Philadelphia’s adoption policy granted the commissioner sole authority to waive the discrimination rule in certain instances, the justices ruled that the policy was not “generally applicable,” so the policy had to pass the “compelling interest” test, which the Philadelphia policy did not, in the opinion of the Court.
But it was a narrow decision, and like the Masterpiece Cakeshop ruling, Fulton does not cement First Amendment rights. Litigants need merely dial back their rhetoric or eliminate an offending clause or two from a city regulation, and the cakemaker or the adoption agency could find itself in court all over again (ask Phillips about that).
While the justices ruled 6-3 not to address Smith in Fulton, nose-counters examining the various concurrences filed with the majority decision toted up six justices who expressed a desire to look seriously at the 1990 law. The most strident was Justice Samuel Alito, who, in a concurrence joined by Justices Neil Gorsuch and Clarence Thomas, blasted the Court for its velleity, for emitting “a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed — as am I.”
The time when the highest court in the land stops kicking the religious liberty can down the road cannot come too soon. Believers and faith-based organizations are being increasingly hassled for their religious tenets.
Cakemaker Jack Phillips gets sued three times for sticking up for his religious beliefs, and the latest litigant says she’ll sue again if the last one doesn’t work. Gay-marriage zealots come after Christian florists who won’t do their weddings or photographers who try to opt out of shooting them because of conscience concerns. They do this seemingly out of spite, out of anger that not all affirm their beliefs about marriage. After all, it’s not like they can’t find a baker who will bake their cake or a photographer who will shoot their ceremony — scores of both can be found in their vicinity. In Philadelphia, there were 29 adoption agencies that would recommend same-sex couples as adopters. But no, the haters come after the one that doesn’t.
The religious liberty can has been kicked enough. We await a case that will allow the Court to clearly affirm the rights of religious adherents.