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How the Supreme Court's Recognition of a Religious Exemption to

Antidiscrimination Laws Could be a Small Step Toward Establishing an American Theocracy

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and 303 Creative v. Elenis.

Jack Phillips, owner and operator of Masterpiece Cakeshop, Ltd., refused to sell a cake to a same sex couple for their wedding because he believed doing so would violate his religious beliefs. The couple complained to the Colorado Civil Rights Commission that Phillip had violated Colorado's Anti-discrimination Act (CADA), which prohibits discrimination against individuals or groups because of disability, race, creed, sex, sexual orientation, marital status, national origin, or ancestry. The Commission ruled in favor of the couple and ordered Phillips to cease and desist discriminating against same sex couples by refusing to sell them wedding cakes or any other goods he was willing to sell to heterosexual couples. The Colorado Court of Appeals upheld the Commission's order, and the Colorado Supreme Court declined to review that decision. Phillips then sought review in the United States Supreme Court, claiming that Colorado had violated both his right to the free exercise of his religion and his right of free speech under the First Amendment.

In an opinion authored by Justice Gorsuch, the Supreme Court "reversed" the decision of the Colorado Court of Appeals, holding that Colorado had violated Phillips' right to the free exercise of his religion under the First Amendment because the Commission had demonstrated hostility toward his religion. What the Court did not decide was whether Colorado's application of the CADA had actually prohibited Phillips from freely exercising his religion in some way. The Court also did not specify what remedy, if any, was available to Phillips. On its face, the Court's opinion appears to allow the Commission to reach the same result on reconsideration of Phillips' case so long as it does not express an unacceptable level of "hostility" toward his religion or religion in general. Thus, while it could be said that Phillips won in the Supreme Court, it was a pyrrhic victory at best.

On its surface, the Masterpiece Cakeshop case appears to present a conflict between Colorado's antidiscrimination laws and Phillips' constitutionally guaranteed right to practice his religion. Phillips claimed that by requiring him to sell wedding cakes to same sex couples Colorado was forcing him to engage in conduct contrary to his religious beliefs. All of the justices seemed to accept that such a conflict was present and that in resolving the conflict the Commission was required to give "neutral and respectful consideration" to Phillips' sincerely held religious beliefs.

In reality, however, no such conflict exists. States, and the federal government as well, have always had the power to enact laws prohibiting discrimination against particular individuals or groups based on factors such as race, religion, nationality, etc., and that power includes the power to enact laws designed to prevent discrimination against persons based on sex or sexual orientation. The authority of states to make and enforce such laws was expressly recognized by the majority in the Masterpiece Cakeshop case itself, and there is nothing in the First Amendment that restricts or limits that authority.

The First Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The language of the First Amendment is clear and straightforward. Congress (and by virtue of the Fourteenth Amendment the states as well) cannot make or enforce any law that prohibits "the free exercise" of religion. What the Free Exercise Clause does not require is that in enforcing laws of general application a state must act in a manner that is "neutral" toward religion or "respectful" of religion. Nor does the Free Exercise Clause prohibit Congress or the states from acting in a manner that the Supreme Court considers "hostile" toward religion. It merely forbids laws that restrict or prohibit the free exercise of religious practices. If a law does not restrict the free exercise of religion, then it does not violate the First Amendment no matter how hostile to or disrespectful of religion it may be appear to the Supreme Court.

To know whether a law prohibits "the free exercise" of religion, it is necessary to first define what that phrase means (something the Supreme Court did not bother to do in the Masterpiece Cakeshop case). One definition of the word "exercise" provided by Mirriam-Webster that seems most applicable in this context is "the act of bringing into play or realizing in action." Applying that definition, the exercise of religion encompasses any activity that is done for the purpose of bringing one's religious beliefs to realization or action. Theoretically at least, baking and selling cakes could be an exercise of religion, despite the fact that such activities are generally performed for economic, not religious purposes. In any event, it is not necessary to determine whether the selling of wedding cakes was for Phillips more of a religious undertaking than an economic one. Either way, his refusal to sell a wedding cake to a same sex couple was not protected by the First Amendment.

The Free Exercise Clause has never been interpreted as allowing a religious exemption from laws generally applicable to all persons. For obvious reasons, one cannot commit murder without suffering the legal consequences simply by claiming that their religion compels them to commit murder under certain circumstances. Similarly, a person cannot violate with impunity laws against polygamy, incest, child abuse, etc., drive a car without a license, or jaywalk even if those activities are claimed to be integral to the exercise of a religion. Laws against discrimination in public life and commerce are no different. Even if a person's religion is based upon a belief in the superiority of one race over another, that belief does not excuse the person's failure to provide equal goods and services of a public nature to persons of all races where the law requires it. In short, there is no conflict between antidiscrimination laws that apply equally to all persons regardless of their religion or religious practices and the free exercise of religion. Persons are free to exercise their religion in any way they choose, so long as they do not violate the law.

This is hardly a novel concept. Article X of the Declaration of the Rights of Man and of the Citizen adopted by the National Constituent Assembly of France in 1789, a year after the United States Constitution was ratified, states as follows :

No one may be disquieted for his opinions, even religious ones, provided that their manifestation does not trouble the public order established by the law.

Antidiscrimination laws are laws that help to establish the public order. Religious opinions or beliefs are manifested through the exercise of religious practices. There is no conflict between the two because the latter is always subject to limitations imposed by the former. At the same time, the actual opinions or beliefs themselves are beyond the reach of the law.

Masterpiece Cakeshop does not present a special or particularly difficult case. Phillips was engaged in the business of making and selling cakes for various uses, including weddings. Colorado law prohibited Phillips from refusing to sell his baked goods, including wedding cakes, to persons because of their sexual orientation. Nonetheless, Phillips refused to sell a wedding cake to a same sex couple. Not surprisingly, the Civil Rights Commission determined that the refusal was based upon the sexual orientation of the couple seeking to purchase the cake. Phillips admitted as much by claiming that the mere act of selling a cake with the knowledge that it would be used to celebrate a same sex marriage required him to engage in conduct contrary to his religious beliefs. But, the CADA applies to everyone engaged in providing goods or services of a public nature. It does not single out any particular religion or religious practice for special treatment. On the contrary, the CADA prohibits discrimination against persons based on their religion. Therefore, Phillips could not claim an exemption from the CADA based on his religion anymore than he could claim exemption from any other Colorado law of general application.

Justice Kagan, in a concurrence joined by Breyer, seemed to recognize that the case was not really about the free exercise of religion. Kagan compared Phillips' case to three other cases involving bakers in which the Commission had not found a violation of the CADA. In those cases, the bakers had refused to sell cakes with messages that the bakers found objectionable. Kagen pointed out that those bakers would have refused to sell cakes with the objectionable messages to any customer. Therefore, the bakers had treated the complaining customer the same as everyone else "just as the CADA requires." In other words, the refusal of the bakers in those cases was based upon a limitation they had placed on the type of cake they would sell, not on the type of person they would sell to.

Phillips could have avoided any problem with the CADA in the same way. He could have decided not to sell wedding cakes at all or to offer for sale only wedding cakes that conveyed his religious beliefs about marriage by including a message extolling the virtues of heterosexual marriage or denigrating same sex marriage. More likely than not, same sex couples would not want to buy such a cake. But Phillips would still be required to sell one to a same sex couple if requested, and doing so would not in any manner prohibit or constrain the free exercise of his religion. On the contrary, by selling such a cake to a same sex couple, Phillips would be putting into practice his religiously based opposition to same sex marriages. What Phillips could not do without violating the law was refuse to sell to a same sex couple the same cake he would sell to anyone else.

That recent challenges to antidiscrimination laws to have reached the Supreme Court have been directed toward undercutting LGBTQ rights is no accident. More than one commentator has pointed out that the Court seems to think First Amendment challenges to laws prohibiting discrimination based on sexual orientation are somehow different from challenges to laws prohibiting other kinds of discrimination. The Court has shown little interest in considering challenges to laws prohibiting discrimination based upon race, religion, gender, or national origin. At the same time, the Court appears to be actively seeking out cases that might provide an opportunity to weaken or outright nullify laws prohibiting discrimination based on sexual orientation.

In December 2022, the Court heard oral arguments in 303 Creative v. Elenis in which a web page designer, Lori Smith, sought an injunction in federal court barring Colorado from enforcing the CADA against her. Smith claimed that she intended to expand her services to include designing wedding websites and that the CADA would violate both her right of free speech and right to free exercise of her religion by forcing her to create websites for same sex marriages contrary to her Christian belief that marriage is only between a man and a woman. The 10th Circuit rejected those claims. The Supreme Court accepted review of that decision, but only as to Smith's free speech claim.

Putting aside the fact that Colorado had not taken or threatened any action against Smith whatsoever, her Free Speech claim is conceptually no different from Phillips' Free Exercise claim. Both claims are based on the argument that an individual's First Amendment rights with respect to religious practices trump antidiscrimination laws. But just as the CADA does not prohibit Phillips from limiting the type of cakes he would be willing to sell based on his religious beliefs, it also does not prohibit Smith from limiting the type of speech she is willing to include in her web design services. Smith can avoid any problems with the CADA by including in all her websites speech that is consistent with her Christian beliefs regarding marriage. She cannot, however, refuse to provide to a same sex couple the same website with the same or similar content that she would be willing to provide to a heterosexual couple. Smith's claim that the CADA would somehow force her to engage in speech contrary to her religious beliefs makes sense only if the CADA dictates the type of product or service she is required to provide. It clearly does not. It simply requires that whatever product or service she chooses to provide to the public generally she must provide to all customers without discriminating against persons based on their sexual orientation.

That Phillips and Smith chose to challenge the CADA rather than limit the type of product or service they would offer to the public shows that neither was really interested in protecting religious practices. What Phillips and Smith are really trying to achieve is the undermining of otherwise valid state laws that they don't like or don't agree with through the judicial process. It appears that the conservative justices on the Court have a similar agenda.

While the ruling in favor of Phillips in the Masterpiece Cakeshop case was of little consequence due to its limited nature, a broader ruling in favor of Smith that requires Colorado to accommodate her religious beliefs when seeking to enforce the CADA could significantly undermine the normal democratic process by subverting the will of the majority to the professed religious beliefs of persons subject to the law. Clearly, no society could function on the basis that laws must take into account or make accommodations for the religious beliefs and practices of every person whose activity might be constrained or limited in some way by the law. Such a system would be completely unworkable unless the law itself allowed for the practice of only one religion. Only then would all persons be subject to equal treatment under the law.

Indeed, a society in which civil law is subordinate to religious doctrine may be the ultimate goal of the current push toward an expansive interpretation of the First Amendment and Free Exercise Clause. Creating an exemption to antidiscrimination laws to accommodate Phillips' and Smith's religious beliefs would do more than simply recognize their right to exercise their particular version of Christian faith. It would constitute a small but significant step toward establishing the United States as a Christian Nation in which all laws must conform to or be limited by "Christian" beliefs and practices. This is not an exaggeration. It is in fact the expressed objective of many ultra-conservative activists who call themselves Christians Nationalists and White Christian Nationalists. While it may seem extreme to suggest that the Supreme Court would partake in such a movement, it is also a fair question to ask whether the Court would have shown any interest in Phillips' and Smith's cases had they based their First Amendment claims on a professed belief in the teachings of Islam, Hinduism, Buddhism, Judaism or any religion other than "Christianity."


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