The Masterpiece Bakery court case in Colorado has put Religious Freedom Laws front and center in our consciences this past year. Masterpiece arose when a baker in Colorado, Jack Phillips, refused to provide a cake for a same-sex wedding. The couple filed a complaint with the Colorado Civil Rights Commission, which held that Phillips had violated the Colorado Anti-Discrimination Act. Then, Phillips said in a lawsuit, that applying the Anti-Discrimination Act would make him use his artistic talents to bake a cake for same-sex couples which would violate his constitutional rights to free speech and his personal religious conscience.
The case is, in the end, going to be about more than just a same-sex couples wedding cake. It is an epic battle in the culture wars. It pits religion and free speech — rights that conservatives claim on one hand, and LGBT rights, as well as abortion access, compliance with all health-care laws and possibly other issues that are just being discussed.
Religious Freedom Laws and Statutes have been in the news since early in 2012 — and even more since the 2016 election. The laws have been brought up, and passed, in many state legislatures across the country. The laws include full protection against discrimination on the basis of religion. But critics say the laws cause problems because individuals and business owners can then discriminate based on their religious views. This happens when other laws that protect LGBT’s, and others, conflict with a business owner’s religious views and they refuse to treat all people equally. Many on the Supreme Court, when hearing the oral arguments in December 2017, seemed sympathetic to the baker.
Predictably, President Trump’s new solicitor general, Noel Francisco, claimed that leaving the law intact in Colorado would mean that an African American sculptor could be forced to make a cross for a Ku Klux Klan event if he made crosses for the general public. That is a mouthful.
Justice Anthony M. Kennedy, who holds the court’s key swing vote and who wrote the decision that recognized same-sex couples’ right to marry, is noticeably rattled. He said, Francisco’s position would essentially permit a “boycott (of) gay marriages.” If the court recognized the baker as an artist who had a constitutional right to refuse to make a cake for same-sex couples, then what’s to stop a chef, or florist, or makeup artist from claiming that same right?
The baker’s lawyer unconvincingly tried to cabin the case to its particular facts: Neither a makeup artist, nor a hairstylist, nor even a chef engaged in work that was sufficiently artistic enough to merit free speech protections. Hmmm. Do you see it that way?
Justice Stephen G. Breyer said, “[it will] undermine every civil rights law since year 2.” A ruling in favor of the baker could effectively nullify hundreds of anti-discrimination laws across the country. It could even nullify the Civil Rights Act of 1964. Even Justice Neil M. Gorsuch, the President’s own appointee to the court, pressed Francisco for a test that would help draw a line that he hopes will avoid that outcome
Americans draw conflicting conclusions about the many conflicting issues of liberty and equality in the case. In recent polling, many American’s think making a cake implies nothing at all about whether a baker endorses the views of those who buy that cake. A majority think selling a cake for a same-sex wedding does not indicate endorsement of same-sex marriage.
But this is a question where the views of Republicans are very different: slightly more Republicans say selling such a cake counts as an endorsement a smaller percentage disagree. And for those for whom religion is very important in their own lives they also divide evenly.
A second distinction is that some Americans don’t find any discrimination in a refusal to sell a wedding cake to a same-sex couple because of a person’s religious beliefs, even though they find discrimination in refusing to sell a cake to an interracial couple when it is due to the seller’s religious beliefs. Is that confusing… yes!
Looking in more detail at polling, some people say it is not discrimination to refuse to sell a wedding cake on religious grounds to a same-sex couple. But many more Americans when polled, think it is outright discrimination. But many, many, more say it is discrimination to refuse to sell a cake to an interracial couple, even if the seller claims the sale would violate his or her religious beliefs. Most Republicans, as a group, see no discrimination in both of these situations.
The U.S. Supreme Court is expected to ule on the issue later this year.