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SCOTUS rules for baker in Masterpiece Cakeshop

By 7-2, the Supreme Court ruled for the baker in the Masterpiece Cakeshop case. All seven of the judges that formed the majority were struck by comments from the Colorado Civil Rights Commissioners that evidenced an anti-religious bias among the Commissioners when they decided the case. The Supreme Court called those comments “inappropriate,” “dismissive,” and “disparag(ing) of religion.”

What were these unacceptable comments? Well, in short, they included what can only be described as a gratuitous rant by one Commissioner about how, in her opinion, “religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust … we can list hundreds of situations.” It really didn’t help when the Commission, faced with three different cases involving bakers who refused to sell anti-gay marriage cakes, held for each of those bakers. The Supreme Court held that, pulling that all together, it seemed the Commission had made its decision not on the evidence and law but “the government’s own assessment of offensiveness.”

Along those lines, Justice Gorsuch, in his concurrence, noted that, if the government could make decisions on the basis of what it deems offensive, freedome of speech and expression would be lost. This is the oft-recognized principle that the only speech that really needs Constitutional protection is offensive speech.

The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.

In reversing based on the Commission’s own bias, the Supreme Court never reached the underlying question whether/when does a baker/florist/other expressive craftsman have a First Amendment right to refuse to sell their good/service to a consumer for religious reasons. Instead, the Supreme Court held that the baker had at least been entitled to a fair hearing of that issue, and that the Commission’s own bias had stripped him of that right.

(T)he delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

Justice Kennedy — who has been the Court’s champion of both gay rights and speech rights, as well as religious liberty rights — wrote the majority opinion. He acknowledged that the Court was dodging the real question of how to balance those rights.

The outcome of cases like this in other circumstances must await further elaboration in the courts….

Still, his opinion suggested how he thought the Court should rule in future cases.

Some examples of cases where he suggested future bakers/florists/etc. might lose on the merits included the following:

  • A baker who “refused to sell any goods or any cakes for gay weddings”

Some examples of future cases where bakers/etc. might win included the following:

  • A “refusal to put certain religious words or decorations on the cake”
  • A “refusal to attend the wedding to ensure that the cake is cut the right way”
  • A “refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it”

We may not have to wait long to find out how the Supreme Court will rule on the underlying issues. A similar case — involving a florist from Washington — is already pending a decision by the Supreme Court whether to hear the appeal in the fall.

Separate opinions in Masterpiece Cakeshop seemed to preview how the Justices might vote:

  • Justice Gorsuch wrote suggesting that he is likely to rule broadly for future bakers/florists/etc.
  • Justice Thomas wrote along such lines as well, though his opinion suggested concern over the concept of even trying to protect the rights of a gay couple in this type of circumstance.
  • Justices Kagan and Breyer, who joined the majority in this case, suggested they would lean split on future cases, ruling against bakers/etc., where there is no evidence of anti-religiouis bias among the state agencies.
  • Justice Ginsburg joined by Justice Sotomayor wrote to express their concerns that the anti-religious comments by the Commission, while unacceptable, were simply not so substantial as to warrant reversal; they would have ruled on the merits, and in doing so, for the gay couple who wished to buy the cake.

That means future cases are likely to have 4 Justices inclined to rule for and 4 Justices inclined to rule against the bakers/florists/etc., and as was expected here, Justice Kennedy is likely to be the swing vote. Expect to see him flesh out his balancing test based on those examples.

As for future cases, Justice Kennedy gave one word of warning — frankly simply restating the concern most of America seemingly has had and had hoped the Supreme Court would wrestle with in this decision — that these rights must be balanced such that religious liberty is not so broadly defined that it becomes an easy excuse for discrimination:

And any decision in favor of (a future) 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.

Readers of course will note that this concern exists not only as to LGBTQ individuals (which is all that quote discusses) but also individuals on the basis of race, gender, age, etc., and, yes, even religion. It simply cannot be the law that a business may refuse to do business on the grounds that a consumer is of a different race, color, gender or even religion.

Readers should also note that this line of cases isn’t just about consumers, and it certainly isn’t about just cakes. This line of cases has potential to touch all aspects of American life. It cannot be, for example, that a business has a right to refuse to hire someone simply because they assert a religious belief against that person’s sexual orientation, gender preference, race, gender, religion, etc.

Source: Masterpiece Cakeshop, Ltd. v. C.C.R.C., case no. 16-11 (Sup.Ct. 6/4/18).

Turn on your radios!

The Supreme Court holds oral arguments tomorrow in Masterpiece Cakeshop. I will be live in-studio on 850 KOA Colorado’s Morning News, for a series of segments starting about 8:00 AM tomorrow morning discussing the case.

Trump Administration moves to expand religious — and moral — liberties of employers

President Trump campaigned, in part, on a promise to expand religious liberties. Following up on that promise, his Administration recently announced a series of new changes — changes that have already sparked litigation and are expected to be highly controversial. Many argue these changes are not only highly controversial but come at the expense of the rights of others.

On May 4, 2017, the President issued a Memorandum for all Executive Departments and Agencies in which he commanded all executive departments and agencies to “respect and protect” religious rights “to the greatest extent practicable and to the extent permitted by law.”  The only specific mandate his Memorandum highlighted (Sec. 3) was for Treasury to develop “conscience-based objections to the preventive-care mandate” under Obamacare. Likewise the Memorandum (Sec. 4) specifically commanded the Attorney General to issue occasional “Religious Liberty Guidance(s).”

Accordingly, it came as no surprise then when, on October 6, 2017, Attorney General Sessions issued his own Memorandum for all Executive Departments and Agencies articulating “twenty principles” designed to “guide administrative agencies and executive departments.”

Religious liberty is a foundational principle of enduring importance in America, enshrined in our Constitution and other sources of federal law. As James Madison explained in his Memorial and Remonstrance Against Religious Assessments, the free exercise of religion “is in its nature an unalienable right” because the duty owed to one’s Creator “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” Religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place. It also encompasses religious observance and practice. Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law. Therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including employment, contracting, and programming. The following twenty principles should guide administrative agencies and executive departments in carrying out this task.

And, on the same day, Treasury issued two sets of interim final rules, that took effect immediately, authorizing employers to claim an exemption from Obamacare’s contraceptive mandate. The first (published in the 10/13/17 issue of the Federal Register at 21851) expands the current right of some entities and individuals to opt out of Obamacare’s contraceptive provisions on religious grounds. Now, religious objectors include churches and their auxiliaries, nonprofits, for-profit entities, other non-governmental employers and certain institutions of higher education. The for-profit employer provisions expand the Supreme Court’s holding in Hobby Lobby, which had authorized closely-held for-profits to opt out on religious grounds. Now for-profit employers that are not closely-held, even publicly-traded companies, may also be religious objectors.

Objectors need not be entities either. Individuals may object to participating in contraceptive coverage, though their objection cannot force a plan to drop such coverage for others.

The second set of interim rules outlines a process for moral objectors. The rules distinguish between “moral convictions” and “religious beliefs,” but, in a move sure to spark significant litigation, they do not define the term “moral.” Whatever that term might mean, it is clear from the language of the rule that a moral conviction need not be based in a religious belief.

Employers interested in utilizing either of these rules should know that lawsuits have already been filed. Further litigation is likely for years to come. And, as cautioned by the Society of Human Resources Management (SHRM), employees may well respond unfavorably. It is estimated that over 55-million women have access to contraceptive care as a result of Obamacare’s mandate. One commentator in SHRM’s article predicted, “There would be tremendous employee relations repercussions if employers took this benefit away, especially given how many women are in the workforce, and I’m sure some employers have done the math comparing maternity costs to the cost of providing contraception.”

Source: Treasury’s final interim rules: 2017-21851.pdf and 2017-21852.pdf