Published by the Freedom From Religion Foundation, Inc. FFRF.org

Supreme Court sides with bakery owner

Vol. 35 No. 5 June/July 2018

The Supreme Court missed an opportunity to strengthen the U.S. Constitution on June 4, instead ruling narrowly that a state civil rights commission violated the free exercise rights of the owner of a Colorado bakery.

In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, a bakery backed by the Religious Right sought to radically redefine “religious freedom” as the right to impose one’s religious beliefs on others. The Colorado bakery refused to bake a cake for a gay marriage, contending the owner’s rights under the Free Exercise of the First Amendment let his business discriminate against LGBTQ customers.

FFRF wrote an amicus brief opposing this argument, noting that the right to believe is protected absolutely, but the right to act on those beliefs can be regulated by the government, especially when those actions impact the legal rights of others.

Justice Anthony Kennedy wrote the 7-2 majority opinion, in which Justices Stephen Breyer and Elena Kagan, typically viewed as liberal justices, joined. Kennedy begins by acknowledging the sincere religious beliefs at issue, and notes, “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.” This is the general rule for which the remainder of the decision is but a caveat.

That remainder is a finger wag to the Colorado Civil Rights Commission. Kennedy essentially argues that the commission’s “treatment of [the bakery’s] case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”

Though the decision will be promoted by the Religious Right as a sweeping victory, the court did not give them what they wanted.

The court did not redefine religious liberty as an unqualified license to discriminate or give the bakery the green light to discriminate in the future. The opinion can even be read as punting on the most important issue. Essentially, Kennedy tortured the facts enough to conclude that the bakery didn’t get a fair hearing and was subject to hostility from the commission.

The commission’s chair had said that Masterpiece Cakeshop owner Jack Phillips was correct to want respect for his beliefs, but that he must also respect the beliefs and will of the people as embodied in Colorado law.

“Under our Constitution, the right to believe has always been absolute, but the right to act on that belief has ended where other people’s rights begin,” says FFRF’s Director of Strategic Response Andrew L. Seidel.

Justice Ruth Bader Ginsburg wrote the dissent, in which Justice Sonia Sotomayor joined. They were clear: The statements Kennedy relied on “do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decision-making entities considering this case justify reversing the judgment.”

“No matter how you slice it, religion is divisive, comments Dan Barker, FFRF co-president.