Since 1990, the U.S. Supreme Court has expressly construed a neutral law of general applicability as consistent with the free exercise clause. Deeming Colorado's public accommodations law just such a law, the Colorado Court of Appeals upheld the law's application in 2015 to a bakery and its owner who would not create a wedding cake for a same-sex wedding because, as a Christian, the owner believed he would displease God. The Colorado court affirmed a cease and desist order requiring the bakery to take remedial measures, but the bakery appealed. Before 1990, the U.S. Supreme Court applied the so-called compelling interest test to infringements upon the sincere religious exercise of individuals. In those cases, it did not matter how neutral or generally applicable was the infringing law; the state had to have a compelling interest pursued in the least restrictive manner to justify the infringement. This week's ruling by the U.S. Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, Case No. 16-111, 2018 WL 2465172 (2017), did nothing to change this.
Reversing the Colorado Court of Appeals, the U.S. Supreme Court expanded its recent focus on governmental hostility to religious exercise as a core basis for protecting sincere religious beliefs. The court identified evidence of "clear and impermissible hostility" toward the defendants by the Colorado Civil Rights Commission in its application of the public accommodations law. Commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain. A commissioner described the baker's faith as despicable, merely rhetorical, or insubstantial and insincere, and compared his beliefs to defenses of slavery and the Holocaust. Perhaps most telling, the commission treated his case and the cases of other bakers who objected to a requested cake disparately and criticized the Colorado Court of Appeals for relegating this issue to a footnote based on its own assessment of offensiveness. By a margin of 7-2, the court reiterated that it will not tolerate hostility to religion and restated that "government has no role in deciding or even suggesting whether the religious ground for [] conscience-based objection is legitimate or illegitimate."
Consensus is harder to find in the hypothetical event of "neutral and respectful" application of the public accommodations law to the baker and others like him. At least four justices (Elena Kagan, Stephen Breyer, Sonia Sotomayor and Ruth Bader Ginsburg) signaled that they would not have considered this a constitutional violation compared with three justices who signaled the opposite (Neil Gorsuch, Samuel Alito and Clarence Thomas). The entire bench agreed that "Colorado law can protect gay persons" and that the baker was subject to this public accommodations law. The majority agreed that religious and philosophical objections ordinarily "do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law." Therefore, if a baker refused to sell any goods or any cakes for gay weddings, "the State would have a strong case." It could also make a difference whether the baker refused to sell any cake at all versus a special cake with words, symbols or images celebrating the marriage. Some justices (Anthony Kennedy, John Roberts, Breyer and Kagan) considered it significant that when the commission decided its case, the state did not recognize gay marriage. Just two (Thomas and Gorsuch) concurred that expressive speech was at issue.
The bottom line is that this week's opinion reiterates that hostility to religious exercise is unlawful. It strongly endorses tolerance and respect for sincere religious beliefs at the same time as it calls for according equal treatment and dignity to gay persons. The opinion leaves the application of public accommodations laws on neutral facts for "further elaboration in the courts." Church-state counsel may be able to assist with negotiating these shoals.
Key Cases Preservation Grant for Church's Stained-Glass Window Stricken Under Blaine AmendmentIn Caplan v. Town of Acton, 479 Mass. 69, 92 N.E. 3d 691 (2018), the Supreme Judicial Court of Massachusetts ruled that, although the Massachusetts Blaine Amendment does not categorically ban the grant of public funds to a church, taxpayers were likely to succeed on the merits of their claim that the town's grant of funds to a church under the Community Preservation Act for refurbishing a stain glass window depicting Jesus violated the amendment. The court remanded the case for a determination whether a second grant under the act for a master plan for historic preservation violated the amendment. The town imposed conditions on the grants, including conveyance to the town of a perpetual historic preservation restriction in the buildings. The Massachusetts Blaine Amendment, Article 46 of the Massachusetts Constitution, prohibits the "grant, appropriation or use of public money ... for the purpose of founding, maintaining or aiding any church, religious denomination or society." The court applied a three-factor test to identify a violation...
