Berkley Center

Many of us expected the baker, Jack Phillips, to defeat the same-sex couple, Charlie Craig and Dave Mullins, in the Supreme Court of the United States. The baker refused to bake a wedding cake for the couple because of his religious opposition to same-sex marriage. I thought it would be a Kennedy 5-4 opinion on free speech grounds. Instead, the Court, in an opinion by Justice Kennedy, unfortunately ruled 7-2 in the baker’s favor on free exercise of religion grounds.

The free exercise decision was surprising because the Free Exercise Clause requires everyone to obey neutral laws of general applicability. The sexual orientation anti discrimination laws are neutral laws of general applicability. Both the Colorado Civil Rights Commission and the Colorado Court of Appeals so ruled. Nonetheless, Justice Kennedy wrote that the commission had displayed religious hostility in its enforcement of those laws, and that the “neutral and respectful consideration to which Phillips was entitled was compromised.”

Justice Kennedy’s evidence of the commission’s “clear and impermissible hostility toward the [baker’s] sincere religious beliefs” did not display any hostility toward religion. Instead, his reasoning is consistent with the Court’s trend to be too positive toward religion, as it was when it ruled against women’s rights in Hosanna-Tabor and Hobby Lobby. In a first commission meeting, Kennedy wrote,

One commissioner suggested that Phillips can believe "what he wants to believe," but cannot act on his religious beliefs "if he decides to do business in the state." A few moments later, the commissioner restated the same position: "[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise."

That statement is not hostile to religion. It simply displays a commissioner commenting on the actual state of free exercise law, which is supposed to mean that everyone must obey it despite personal preferences. Instead, according to Justice Kennedy,

Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.

Thus, Justice Kennedy gave a surprisingly anti-religious interpretation of what could have been a statement of the law. Then, in a second meeting, Kennedy describes a commissioner who said:

"I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others."

That statement is sad but true. We have an Establishment Clause because the Founders recognized the harms that religions did to individuals in the past, and would do in the present and the future if allowed to. This statement honestly expresses the concern that underlies the Religion Clauses, which are not supposed to express an uncritical approach toward religion. Nonetheless, according to Kennedy’s interpretation of that statement,

To describe a man’s faith as "one of the most despicable pieces of rhetoric that people can use" is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

It is hard to believe that expressing the accurate role of religion in history and society became firm evidence of a free exercise violation. Kennedy thinks the situation became even worse because the legal record shows no objection from other commissioners to these statements, the state court decisions did not mention them, and the commission never disavowed them.

Justice Ginsburg’s dissent, which was joined only by Justice Sotomayor, concluded that statements made by only one or two members of four decision-making groups did not justify reversal of the Court of Appeals’ decision. Moreover, the two justices “see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins.” The dissent also noted that the majority did not identify what “prejudice infected” the decision makers. The dissenters should have been more critical of the majority’s negative treatment of the commissioners’ statements.

On the Supreme Court, religion triumphed over the antidiscrimination laws in employment law (Hosanna-Tabor) when the Court accepted a ministerial exception that dismisses many employment discrimination cases before the facts are heard. Religion also defeated contraception (Hobby Lobby) when the Court exempted businesses from enforcing the Affordable Care Act. Now LGBTQ rights have lost to religion, because a majority of the Court thinks religion is almost always good and that its critics foolishly violate the Constitution. The Court should instead listen to the voices of women, LGBTQ individuals, the disabled, the aged, the pregnant, victims of tort and contract harm, and the underpaid. It might give them a more even understanding of religion.

EDITOR’S NOTE: This blog post was originally published on the American Constitutional Society’s ACS Blog.