Monday morning, The Supreme Court announced it would hear the case Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission during their next term. This is the first case to address religious practice and same-sex marriage since Obergefell v. Hodges (2015).
The case concerns whether Colorado can coerce a Christian baker into creating a custom wedding cake for a same-sex wedding. The case is likely to be remembered as one of the most important religious liberty cases of the decade.
Below is a brief overview of the case, the potential outcomes, and the ramifications.
Circumstances of the Case
In 2012 David Mullins and Charlie Craig ordered a custom wedding cake from Masterpiece Cakeshop in Denver. The owner, Jack Phillips, offered to sell them any of his existing baked goods but believed creating a wedding cake specifically for a same-sex wedding would “displease God.”
This is in line with Phillips’ previous religiously motivated business practices such as not working on Sunday, not creating Halloween cakes, or baking items with that incorporate alcohol.
Mullins and Craig received a free wedding cake from a nearby bakery for their wedding reception. They then sued Phillips for violating Colorado’s nondiscrimination ordinance.
Those who support the Colorado Civil Rights Commission argue that an individual’s religious beliefs cannot trump state law, while those who support Phillips argue that refusing to create a product with a specific message does not equate to refusing to serve a class of customers. Further, he should not have to abandon his free-expression and free-exercise of religion rights simply because he entered the marketplace.
Relevant Legal History
Currently in the United States, there are two tiers for the free exercise of religion.
- Neutral law of general applicability. This standard means that any law that does not specifically target one religion is legal. This standard applies to any state that does not have a Religious Freedom Restoration Act (RFRA).
- The Sherbert test. This standard means that to restrict the free exercise of religion, a law must be the least restrictive way of accomplishing a compelling government interest. This standard applies to laws passed by the federal government and states with an RFRA.
The Sherbert test was created by the Supreme Court in 1963. From that time until 1990 it applied to the entire country.
In 1990 the Supreme Court overturned that precedent in the case Employment Division v. Smith and instituted the neutral law standard for the entire country.
In 1993, Congress passed the RFRA, this law reestablished the Sherbert Test as the legal standard. This again applied to the entire country.
In 1997, the Supreme Court heard the case City of Boerne v. Flores which found that while the RFRA can restrict laws that Congress passes, it cannot restrict the laws that individual states pass.
In the twenty years since individual states have passed their own versions of the RFRA. This is what has created the two tiers of religious freedom.
Colorado does not have an RFRA.
While it could be tempting to see the case as simply two-sided, the Supreme Court could decide based on many differing rationales that would each have a very different long-term impact.
Maintain the Status Quo
The court could decide that the neutral law standard from 1990 is still applicable and should be applied in this case. If the court decided the case on these merits, it would need to answer if the law is neutral and generally applicable.
On the face, the answer to the question is yes. The law does not specifically call out one religion. However, Phillips’ legal team has argued that Colorado has not enforced the law in all situations, specifically targeting those with an Evangelical Christian faith.
If the court finds along these lines, it is unlikely to substantially affect religious freedom in the United States regardless of who wins this specific case.
Revert to the Sherbert Test
The court could also abandon the neutral law test. Of the nine members of the court, only one, Anthony Kennedy, also ruled on the Smith case.
In this case, the court would rule that the Sherbert test (or a test substantially similar) is the more accurate way to interpret the free exercise of religion clause. This would bring all US states back under one religious freedom standard.
Legally, in this case, the court would likely side with Phillips, since ensuring that same-sex weddings receive a cake can be established in any number of less restrictive ways than coercing individual bakers. Practically though, Kennedy is likely the swing vote and would be unlikely to vacate a decision he had personally signed.
Overturn City of Boerne v. Flores
The court could leave the neutral standard as the constitutional rule, and yet find based on the Sherbert test by overturning the Flores case.
By doing this, the RFRA would once again apply to every state, and they could make a finding on the case based on the Sherbert test as outlined above.
This legalistic move would have far-reaching ramifications for states that do not currently have an RFRA. But is very unlikely.
The Court rarely decides cases based on questions that are not set to be presented. And the justices who would be more favorable to expanding federal power this way would be less likely to like the implication on this specific case.
Find on the Merits
While Phillips has contended that he did not violate the Colorado civil rights statute because of his willingness to serve LGBT customers in other ways, that question will not be determined at the Supreme Court.
Relying on Symbolic Speech
While the case has been largely framed as a religious freedom case, it could be decided on freedom of speech grounds.
If the court finds that baking a cake is symbolic speech, then the state could not coerce it.
This finding would rely on a standard from the flag burning case Texas v. Johnson (1989) that defined something as speech if “an intent to convey a particularized message was present, and . . . the likelihood was great that the message would be understood by those who viewed it.”
In this case, the first question is moot since Phillips clearly feels the cake conveys a message. So the case would hinge on whether or not those who saw the cake would assume the baker supported the marriage.
This outcome would be a negative for the legal strength of the free exercise of religion since it would be viewed as weaker than freedom of speech. However, the practical effect for people of faith would be positive since many religious acts could be similarly interpreted as expressive speech.
This ruling could mark a moderate path by keeping civil rights acts largely intact while carving out a narrow exception for expressive products like photography.
Majority by Concurrence
Because of the many issues in this case, the Supreme Court could theoretically rule for one side but do so using so many different rationals that a single majority ruling would not have a long-term effect.
The Supreme Court generally avoids ruling on overly narrow cases, so the case likely wouldn’t have been allowed to come forward unless the justices felt there was a good chance of a substantial ruling.
Which Way Will It Go?
Most observers believe the case will split along ideological lines with the four conservative justices favoring Phillips and the four liberal justices favoring Colorado.
As with so many cases, this leaves Anthony Kennedy in the center. Is there any history to decide how Kennedy might rule in this case?
Kennedy did, of course, contribute to the Smith ruling limiting the free exercise of religion, to begin with. But his record since then has been more mixed.
In Boy Scouts v. Dale (2000), Kennedy sided with the Boy Scouts that they could exclude a homosexual scoutmaster. Interestingly, the ruling didn’t rely only on freedom of association but “expressive association,” finding that allowing an LGBT leader sends a message about Boy Scouts’ values.
In Christian Legal Society v. Martinez (2011), however, Kennedy wrote in a concurrence that coercing a Christian campus group to accept LGBT members was acceptable because it promoted the legitimate purpose of student development and growth.
In Burwell v. Hobby Lobby Stores (2014) Kennedy sided with the majority that closely held business owners cannot be coerced to provide contraception. Importantly, however, the Hobby Lobby decision was based on the Sherbert test, which is not likely to be the test at play in this case.
Finally, in Obergefell v. Hodges (2015) the case which created a right for same-sex marriage, Kennedy wrote, “Those who adhere to religious doctrines may continue to advocate . . . [that] same-sex marriage should not be condoned.” The Masterpiece Cakeshop case will give him the opportunity to show how secure he intends those protections to be.