By now you have probably heard that Jack Phillips, the Lakewood, Colorado baker whose refusal to create a custom cake for a same-sex wedding was the subject of a recent Supreme Court decision, is once again being accused of unlawful discrimination by the Colorado Civil Rights Commission.
Arguably, the smartest take on the story was expressed on, of all things, “Real Time With Bill Maher.” In his opening monologue, Maher said that the case raised two questions: First, is there only one bakery in Colorado, and, if that’s the case, why can’t people appreciate the business opportunity? He continued “I’m going to move to Grand Junction, Colorado and open a store called ‘[Have Sex] With Whomever You Want.’”
Would that life imitated HBO, at least in this instance. Unfortunately, it doesn’t so Phillips and his attorneys are back in court in the latest skirmish in the war for religious freedom.
The problem is that Phillips’ case, and others like it, aren’t really about religious freedom, at least not legally.
To understand why, and what it means for the rest of us, I should define religious freedom, at least as it’s used in conservative Christian circles. The principal definition is, to borrow a fancy theological term, apophatic. It tells us what religious freedom is not: mere freedom of worship and belief.
By this I mean that the expression “religious freedom,” while not denying the importance and even centrality of these freedoms, insists that religious freedom cannot be limited to merely freedom of worship and belief. It must include the ability to live out your faith outside of your church and home.
When we talk about Jack Phillips, Barronelle Stutzman, and others, this is what we have in mind when we say that their religious freedom has been abrogated. They have been denied the freedom to live out their faith and convictions in their place of business.
But that’s not what the legal arguments are about. The phrase “religious freedom” doesn’t appear once in the Justice Kennedy’s majority opinion in Masterpiece Cakeshop v. Civil Rights Commission. (The only time it appears is in passing in Justice Gorsuch’s concurring opinion.) While the expression “free exercise” appears ten times in Kennedy’s opinion, the majority punted on the issue of whether Phillips had a free exercise, or any other constitutional, right to refuse to create the requested cake.
It could hardly be otherwise since the issue wasn’t raised during oral arguments. Instead, the issue was whether Colorado was violating Phillips’ free-speech rights by compelling him to communicate an idea — in this case, support for same-sex marriage — via his creation of a custom cake. The exchanges centered on how far this free speech right extended — Florists? Jewelers? Hair Stylists? — and not the balance between Phillips’ right to free exercise and the state’s interest in preventing discrimination against protected classes.
And even here, the Court punted. Despite the attempt to spin constitutional gold from straw by Phillips’ supporters, there was little guidance on what it means to take a person’s religious convictions seriously and treat them with due respect apart from “don’t compare the person to the Nazis.”
Now, it’s possible, perhaps even likely, that replacing Justice Kennedy with Brett Kavanaugh will provide the crucial fifth vote to embrace the free speech argument made by Phillips’ attorney at oral arguments. But as welcome as that might be, its impact will be small because, to vamp on Maher’s question, how many Christian bakers, florists, and photographers/videographers are there? And how many of them live in states with Sexual Orientation/Gender Identity (SOGI) anti-discrimination laws?
Such a ruling will do little to promote religious freedom as that expression is understood in conservative Christian circles. And the reason it won’t can be laid at the feet of of a conservative Christian icon: the late Justice Antonin Scalia.
De Mortuis Nil Nisi Bonum
As important as it is, the most important religious freedom case of our lifetime isn’t the Masterpiece Cakeshop case – — it’s Employment Division v. Smith, a.k.a., the Peyote case.
The case involved two counselors at a private drug clinic in Oregon: Alfred Smith and Galen Black. They were, in addition to being drug counselors, members of the Native American Church, which uses peyote in its sacraments.
Not surprisingly, the tensions between their day jobs and their religious practices eventually caught up with them and they were fired. When they applied for unemployment benefits, their application was denied because they had been fired for “work-related misconduct.”
They appealed the denial in the Oregon courts. Eventually, the Oregon Supreme Court ruled the law against the sacramental use of peyote violated the First Amendment’s “Free Exercise” clause. The state then appealed to the Supreme Court.
At the time the case was heard, the standard for adjudicating these kinds of claims was Sherbert v. Verner, which concerned a Seventh-Day Adventist who was fired for refusing to work on Saturdays. In Sherbert, the Supreme Court held that a substantial infringement on the free exercise of religion could only be justified if it served a compelling governmental interest and did so in the least restrictive means possible.
It’s difficult to know how Smith and Black would have prevailed under Sherbert but it doesn’t matter because in his majority decision Scalia changed the rules. Instead of applying Sherbert, he effectively rendered it a nullity, limiting its applicability to laws affecting acts that are associated with religion, such as consuming sacramental wine.
In its place he substituted a much less stringent standard. In instances of what he termed a “neutral law of general applicability,” the government didn’t need to show a compelling interest. All it had to show was that religious behavior wasn’t specifically targeted by the law.
According to Scalia, the Free Exercise clause doesn’t create an exemption to “neutral laws of general applicability,” such as Oregon’s drug laws. As he wrote, “To permit [such an exemption] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
While the Religious Freedom Restoration Act (RFRA) restored Sherbert on the federal level, which is why Hobby Lobby was able to prevail in its challenge to the contraceptive mandate, on the state level, Smith, as Michael Farris of the Alliance Defending Freedom put it, “killed the free exercise of religion.”
It “killed the free exercise of religion,” at least on the state and local level, because, to put it bluntly, local and state governments have to be pretty stupid, arrogant or both to run afoul of Employment Division v. Smith. You would have to enact a law along the lines of Hialeah’s anti-Santeria-in-all-but-name ordinance that was overturned in the awesomely-named Church of the Lukumi Babalu Aye v. City of Hialeah. (Babalú-Ayé in this instance is a Yoruba orisha, and not a reference to the Desi Arnaz song.)
Absent this kind of stupidity, free exercise cases like Jack Phillips’ become free speech cases. Instead of addressing the vexing questions about the legal and political intersection of changing sexual mores and traditional religious beliefs, we argue about why one kind of a cake is a form of speech and another is not or why a floral arrangement involves the kind of creative expression that is protected by the First Amendment and interior decorating does not.
Absent the deliberate targeting of religious people and/or their institutions, religious freedom becomes a byproduct of other constitutional and statutory rights, especially freedom of speech. This is a far cry from the idea of religious freedom as the “first freedom.”
As I said earlier, I expect Jack Phillips to ultimately prevail and finally enjoy a well-earned respite from government-sanctioned harassment. And while this will be worth celebrating in the “rejoice with those who rejoice . . .” sense, its impact will be limited because of Employment Division v. Smith — the most important Supreme Court decision no one — okay maybe a few of us — has ever heard of.
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