A huge win? Not so fast.

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The media is reporting a “victory” for religious liberty.

But today’s ruling was a very small win for religious liberty. And many important questions remain unresolved.

First, the good news.

The Supreme Court stated that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

That’s good to hear. After all, the elites in entertainment and the media routinely smear everyone who doesn’t celebrate same-sex ‘marriage’ as “bigots.” Seven justices on the Supreme Court agree that our views on marriage are protected.

That led the Supreme Court to rule 7-2 that the state government (in this case, the Colorado Civil Rights Commission) was “neither tolerant nor respectful” towards baker Jack Phillips’ Christian view on marriage. In fact, the Court said the Commission showed “clear and impermissible hostility toward the sincere religious beliefs motivating his objection.”

The Supreme Court pushed back strongly over the anti-Christian bigotry of the Colorado Civil Rights Commission. That’s also great news.

But the Supreme Court limited itself to ruling on the conduct of the Colorado Civil Rights Commission. They decided against setting a precedent in this case. In fact, one could easily conclude, based on today’s ruling, that states are permitted to punish wedding vendors who refuse to participate in same-sex ‘weddings’ so long as the state is not overtly hostile to religion while they do it.

In other words, the Supreme Court did not recognize a robust First Amendment right to religious liberty for bakers like Jack Phillips. They simply said that the Colorado Civil Rights Commission went too far.

The Court punted most of the real issues brought up in the Masterpiece Cakeshop case — leaving Congress or (more likely) a future Supreme Court to hand down a final ruling.

That simply means we live to fight another day.

Just imagine how much worse today would have been if Merrick Garland were on the Supreme Court. If that had happened, there’s no doubt in my mind the Court would have demanded that Jack “bake the cake!”

Thankfully, we have Neil Gorsuch on the Supreme Court. And that means there are four strong votes in favor of robust religious liberty. And yet there are also four liberals ready to chip away at our First Amendment right to religious expression.

The battle for the courts remains up for grabs.

The Senate has the power to confirm new judges.

Remember in November.

Brian

 

P.S. At the Trump administration’s request, the Supreme Court today also decided to throw out a lower-court ruling in an abortion case. The government told an illegal immigrant seeking an abortion that she had to stay at the shelter or return to her home country.

But the ACLU got a federal court to order the government to escort her to an abortion facility. Sadly, the unborn child was aborted the next day. The Supreme Court’s decision to throw out the case at least means that no legal precedent is set by the lower court’s misguided ruling. Again… this just shows us how important the battle for the judiciary really is.

The views expressed here are those of the author, and do not necessarily represent the views of CatholicVote.org

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Brian Burch is President of CatholicVote.org.

11 Comments

  1. Rob Schroeder on

    Did you actually read the decision?
    In Newman v. Piggy Park Enterprises (1968), the defendant claimed he could bar Black patrons from his restaurant because “his religious beliefs compel him to oppose any integration of the races whatever.” Specifically, the defendant argued that serving Black customers would be de facto vindication of racial equality. The Supreme Court ruled 8-0 that the First Amendment does not override public accommodation law.
    Contrary to what you have written, eight justices in the Masterpiece decision affirmed the precedence of the Piggie Park decision. Justice Gorsuch is the only who did not.
    As Justice Kennedy wrote, “Nevertheless, while those religious and philosophical objections are protected, it is a general rule 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.” See Newman v. Piggy Park Enterprises, Inc., 390 U. S. 400, 402, n. 5 (1968) (per curiam)
    I will ask again – did you actually read the concurrence of Justice Gorsuch? He writes: “But for any law to comply with the First Amendment and Smith, it must be applied in a manner that treats religion with neutral respect. That means the government must apply the same level of generality across cases—and that did not happen here.”
    Gorsuch again: “But it is also true that no bureaucratic judgment condemning a sincerely held religious belief as “irrational” or “offensive” will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise.”
    https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf
    So let me ask very plainly: is it the position of CatholicVote that the Piggy Park decision is incorrect? That a business owner can deny Black people service based on religious belief?
    If Justice Gorsuch is to be our guide, as you claim he is to be, we have to accept the following conclusions:
    1. The government cannot judge the validity of anyone’s religious beliefs, meaning we cannot discard the beliefs of the Piggy Park owner as stupid or irrational or full of hatred or whatever. There is to be no judgment of the validity of belief.
    2. Religious belief must be treated with neutral respect by the government. If it is true that Jack Phillips has a constitutional right to deny service to certain customers based on his beliefs, what neutral respect allows the government to sanction the owner of Piggy Park? What neutral respect would allow the government to sanction, say, an evangelical who believes Catholics are Satanic and chooses not to hire Catholics? Those people are out there, most certainly.
    Sadly, the real gist of what you seem to be getting at is that you wish to be able to discriminate according to your own beliefs, but I highly doubt that you want to afford that right to anyone else.
    Are you willing to let everyone’s beliefs override public accommodation law, or just those who you agree with?

    • “So let me ask very plainly: is it the position of CatholicVote that the Piggy Park decision is incorrect? That a business owner can deny Black people service based on religious belief?”

      Why would you ask that question at all, “very plainly” or otherwise?

      You completely ignore the compelling state interest precept inherent in these type of cases.

      Don’t be a gadfly, Rob.

      • Rob Schroeder on

        Given that the Piggy Park owner’s beliefs are just as equal and valid as Jack Phillips’ beliefs, according to Gorsuch, what “compelling state interest” is enacted in a neutral respect that would sanction the Piggy Park owner but not Jack Phillips?

        • The state/courts have consistently ruled that race-based discrimination in public accommodations is unlawful a la the Piggy Park matter. The compelling state interest here is to not allow race-based discrimination in public accommodations.

          The court’s decision here indicates that Phillips’ views were not given proper consideration, particularly in light of the fact that ..”, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. ”

          They appear to not have addressed Phillips’ characterization of his work as something other than what is typically regarded as “public accommodation”.

          • Rob Schroeder on

            What you are saying is factually incorrect.
            1. The Court did not find that Phillips’ views were not given proper consideration because the commission ruled in a different manner in other cases. You conveniently left out the paragraph that immediately follows the quote you offered.
            “There were, to be sure, responses to these arguments
            that the State could make when it contended for a different result in seeking the enforcement of its generally applicable state regulations of businesses that serve the
            public. And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods
            and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case.”
            This last sentence is key. The Court did not find that the commission must issue the same ruling in all cases. If they wrote that somewhere, feel free to quote it. Rather, the commission showed undue hostility toward Phillips’ views in its consideration of his case. I completely agree.
            2. The Court clearly states in this quoted paragraph, and elsewhere, a compelling state interest to not allow discrimination based on sexual orientation in public accommodation. Further:
            “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. It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”
            Clearly, the Court finds that equal access to public accommodation for gay persons is a compelling state interest. I don’t know how they can state it any more clearly.
            3. Since this is a Catholic website, I am at a loss to understand why the Catholic perspective would be that gay persons should not be free from discrimination in public accommodation, just as anyone else on the planet should be free from discrimination in public accommodation.

          • RE #1, I did not intend to mislead/spin, rather provide some context.

            RE#2-” The Court clearly states in this quoted paragraph, and elsewhere, a compelling state interest to not allow discrimination based on sexual orientation in public accommodation” Right. I’m not arguing anything counter to that. The Court didn’t take issue with that.

            RE#3-I think that Catholics can legitimately concern themselves with the prospect of religious freedoms being stepped on. The LSOP case shows that such a concern is legitimate.

  2. Rob Schroeder on

    Ram – no doubt, the ruling points numerous times to the need to find a balance between respecting religious freedom and respecting access to public accommodation. As Kennedy wrote, there probably is no “magic bullet,” and future cases will be decided on the individual merits of each case.
    Nevertheless, the reason I asked my initial question is because the facts are lined up pretty well here. We both agree that the government has a compelling interest in preventing discrimination in public accommodation, period. The Piggy Park case and the Masterpiece case are thus similar. The justices agree – they literally cite Piggy Park in their explanation as to why they are not ruling that Phillips’ religious rights trump access to public accommodation.
    I believe we both agree the Colorado commission did not act neutrally.
    My question to the author of this piece is not about whether the commission acted rightly or wrongly. The author states that Jack Phillips should have the right to “opt out” of public accommodation law because of his religious beliefs.
    And so my original question to the president of CatholicVote is still quite relevant: given that the government cannot assess the validity or worth of religious beliefs, and given that the government must evaluate disputes between religious freedom and public accommodation neutrally, why should Jack Phillips enjoy rights that the owner of Piggy Park does not?
    The owner of Piggy Park sought release from public accommodation law because of his religious beliefs. Jack Phillips seeks release from public accommodation law because of his religious beliefs.
    In what neutral respect would the government find cause to release Phillips but not the owner of Piggy Park?

    • I personally am of the belief that anything that isn’t an “off the shelf” transaction – i.e. it’s custom and has specific performance expectations other than “hand me that item, please, I’ll pay cash” is a transaction that falls outside the nominal scope of public accommodation laws. To my reading, this is a contractual arrangement, and people cannot be compelled to enter into contracts in violation of their religious beliefs. I was a contractor for a decade and declined to enter into agreements for any number of reasons.

      Agreed that this will be a “death by a thousand cuts” in the courts with these cases as they will be decided on individual merits.

      See first paragraph as to my response to your final question-I see it personally as an apples/oranges thing.

      Thanks

      r
      Maybe not in CO. I don’t know.

      • Rob Schroeder on

        Hi Ram: if you’ll permit me, I’d like to answer this in two different ways.
        1. I agree with your premise. In the Phillips case, if Phillips makes wedding cakes, i.e. he bakes a cake, he frosts it, etc., then that is a pretty standard product. If someone simply orders the same wedding cakes he makes all the time, I believe the public accommodation law covers this. For example, does he have a “menu” of cakes offered? In this particular case, the gay couple came in and asked for a wedding cake. The ruling specifically notes: “They did not mention the design of the cake they envisioned.”
        In this case, Phillips said no immediately. Maybe had he said yes, the couple would have requested a specialized cake unique to a gay wedding. But all we have is what happened. They asked for a wedding cake – a standard product he produces – and he said no.
        If a baker makes two identical cakes, one for a heterosexual wedding and one for a gay wedding, I am hard-pressed to believe that the cakes are actually two different types of cakes. For this reason, I believe public accommodation law would apply in this case.
        If every cake Phillips makes is unique, no two are alike in any way, then I think his argument has more credence. But I’m hard-pressed to believe a bakery that operates at some degree of scale does not use commonality of ingredients, recipes, techniques, etc.
        2. The author of this piece specifically cites Gorsuch, and as such we should analyze what Gorsuch has to say. Gorsuch argues that even if two cakes are made with the exact same ingredients in the exact same manner, the use of the cake, based on the people who are using it, makes the cakes different. Thus, a cake baked for a gay wedding is categorically different than a cake baked for a heterosexual wedding (see pages 33-35 of the PDF – it’s too long to quote).
        According to Gorsuch, who again, the author has recommended as the voice of reason to Catholics, we must evaluate all cases of public accommodation with neutral respect.
        Let us apply the same standard to Piggy Park. The owner makes barbecued meats. By all accounts, he uses the same ingredients, the same recipes, the same techniques regardless of who is eating the the barbecue. If we are to believe that a cake baked for a heterosexual wedding is totally different from a cake baked for a gay wedding, even if the physical product is exactly the same, then in a neutral respect, we should assume that barbecue prepared for white customers is actually different than barbecue prepared for black customers, even if the physical product is exactly the same. The difference, in both cases, is who is consuming the product.
        Again, we are left with the question: why release from accommodation in one case, and not in another, when dealing with neutral respect?

        • I understand your question-I just don’t base it on the same premise you do RE the setup to it.

          I think that this type of thing will be in the headlines for a long stretch to come.

          Thanks for the dialogue.

          • Rob Schroeder on

            Thank you for a good discussion in a non-confrontational manner. It’s good to disagree and hear others’ views. I am no Court scholar, assuredly.

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