October 2018 Church & State | Viewpoint

By Steven Puro

The U.S. Supreme Court is starting its 2018-19 term this month. Although we don’t know yet the range of issues the high court will confront, many observers believe the question of whether religious freedom confers a right to discriminate may surface.

The court last term dodged this issue. In its Masterpiece Cakeshop decision, the court approached the question of how far the owners of a public accommodation can use their religious beliefs to operate the business but largely avoided key constitutional issues of free expression and freedom of religion raised by a baker. Rather, in a narrow ruling based on administrative procedure, the court ruled that the Colorado Civil Rights Commission’s treatment of the baker was hostile to his religious viewpoint.

Although the 7-2 ruling favored the baker’s refusal to make a wedding cake for a same-sex couple, Justice Anthony M. Kennedy asserted that business owners are not permitted to use religion, or religious objections, to discriminate against protected classes of groups or individuals. Thus, the business owner’s First Amendment claims of free speech or free exercise of religion do not supersede public-accommodation laws, which exist in most states. Some of these laws prohibit public establishments from discrimination based upon sexual orientation.

An important First Amendment principle is that government cannot compel speech, and this principle was the basis of the baker’s claim for his exercise of religious freedom. He argued that the Colorado anti-discrimination law compelled his speech by requiring him to exercise his artistic talent to express a message he disagreed with; this message, he said, would violate his free exercise of religion.

As mentioned, the Supreme Court was skeptical of these claims.

The Alliance Defending Freedom, a conservative Christian legal organization with an approximately $50 million annual budget, sponsored the lawsuit. Its broad legal strategy applies First Amendment freedom of speech protections to support and expand conservative definitions of freedom of religious expression. The group also seeks to diminish separation of church and state by arguing that American law should be based on Christian rather than constitutional principles.

The situation is precarious, and we should monitor developments closely. A court ruling that grants individuals or groups the right to tailor the provision of goods and services to their religious beliefs will create an entanglement of religion and government that diminishes the independence of both vital institutions in our society.

Kennedy’s majority opinion in Masterpiece affirmed that religion cannot be used to justify discrimination against protected groups, including LGBTQ people. In Masterpiece, he sees that if the baker is permitted to discriminate, then any owner of a public accommodation can use religious interpretations against individuals whose ideas the owner opposes, such as Christians not providing services to women, Latinos or agnostics.

U.S. law should not be based on theological principles that would allow one group or individual to impose their religious beliefs on another person or group, even though the legal environment where businesses express and impose religious beliefs was supported in Burwell v. Hobby Lobby Stores (2014). Here the Supreme Court allowed for-profit religious corporations to qualify for protection of their religious beliefs, enabling Hobby Lobby Corporation to use religious objections to deny its employees’ health coverage for contraception under the Religious Freedom Restoration Act.

Lessons for future cases remain unclear and await further elaboration. Kennedy said in the majority opinion: “These disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Strong words indeed. But will they stand? Kennedy’s decision to resign from the high court will likely reopen the issue and lead some people to conclude that since the dynamics of the high court have changed, they must push even harder for the right to use their personal religious beliefs to deny goods, services and even health care to others.

The situation is precarious, and we should monitor developments closely. A court ruling that grants individuals or groups the right to tailor the provision of goods and services to their religious beliefs will create an entanglement of religion and government that diminishes the independence of both vital institutions in our society.

Steven Puro is professor emeritus of political science at St. Louis University.