High Court to Decide on Religious Freedom to Discriminate

The U.S. Supreme Court has a convenient habit of issuing their most controversial decisions at the end of June, after which they flee the jurisdiction for summer break until October (nice gig!). Today they announced that they’d hear the appeal in Masterpiece Cake Shop v. Colorado Civil Rights Commission, the case of a baker who refused to make a wedding cake for a same-sex couple because of his religious belief that marriage should only be between a man and a woman, as reported by The Huffington Post. The high court has twice previously delayed action on the case. More background can be found in this March 2017 article from The New Yorker:

After the incident at Masterpiece Cakeshop became public, another bakery provided Craig and Mullins with a cake, adorned with a rainbow, at no charge. But the affront gnawed at the couple, and they filed a discrimination charge with Colorado’s Civil Rights Commission that September. The commission brought a case against Phillips and his shop in May, 2013.

The situation differs in some important ways from, say, those in which African-Americans were refused service at Woolworth’s lunch counters in the nineteen-fifties. One factor that is not different, however, is the way that religion has often been cited as a basis for discrimination. “Most Protestant churches in the South believed slavery and, later, [American] apartheid and anti-miscegenation laws were ordained by God,” [Yale Law Professor William] Eskridge told me. “Presbyterians, Methodists, Southern Baptists—respectable religions. Maybe several million people still believe that.”

Yet, from the standpoint of individual liberty, a mammoth corporation, such as Woolworth’s, is different from a mom-and-pop business. The regulatory machinery has been hesitant to tell individuals how to behave on their own premises, no matter how repugnant their behavior may seem. To this day, as Eskridge observes, the federal employment-discrimination laws do not apply to businesses with fewer than fifteen employees, and housing-discrimination laws do not affect owner-occupied buildings with four units or fewer.

Also, a Woolworth’s luncheonette could not plausibly have claimed that serving a plate of hash browns was a form of expression protected by the First Amendment. In the Masterpiece Cakeshop case, and disputes like it, the sole proprietors often argue that their work contains a strong expressive element, subject to First Amendment protections. In Phillips’s briefs, for instance, his lawyers never describe him as a “baker” but always as a “cake artist,” arguing that a wedding cake “forms the centerpiece of a ritual in which the couple celebrates their marriage,” and that it “communicates this special celebratory message. Slicing a pizza or pot roast would not have the same effect.”

Judges have rejected these arguments so far, in part because Phillips’s refusal to serve Craig and Mullins was so categorical, and their conversation so brief. They never reached potentially relevant details such as what, if anything, would be inscribed on the cake.

“For all Phillips knew at the time,” an administrative-law judge ruled, in 2013—in a decision later adopted by the Colorado Civil Rights Commission and upheld by the state appeals court—Craig and Mullins “may have wanted a nondescript cake suitable for consumption at any wedding.” The commission has conceded that Phillips could have lawfully declined to write messages that he disagreed with on the cake, and it has previously allowed bakers to refuse to adorn cakes with white-supremacist and anti-Muslim messages.

Phillips’s attorneys argue that the couple was asking him to “design and create” a unique cake, and that, even if they weren’t, any cake would convey the “unconscionable” message “that a wedding has occurred, a marriage has begun, and the couple should be celebrated.”

Commentators predict that Trump’s first appointee, Justice Neil Gorsuch, will tip the Court further in the direction of conservative Christian carve-outs from neutrally applicable laws. This trend picked up momentum with the 2014 case of Burwell v. Hobby Lobby Stores. That case held that closely held corporations were “persons” with rights to the free exercise of religion under the federal Religious Freedom Restoration Act (RFRA)–specifically, the right to refuse to cover contraception in employee health insurance plans.

While the wedding cake example may seem trivial in isolation, it’s a microaggression which, if multiplied, intentionally creates a climate of fear and exclusion for LGBTQ citizens. Consider the hundreds of small transactions and interactions you engage in each week, then imagine the anxiety of wondering whether you’ll be refused service, each and every time. Think about having to calculate whether it’s too risky, for your emotional and perhaps physical safety, to leave your house and go to the store today. Craig and Mullins were able to find a competing vendor, but in a small town where the baker’s homophobia is widely shared, you could easily get into a situation of community-wide shunning.

Meanwhile state legislatures are feeling emboldened to apply anti-gay “religious freedom” precedents to more serious matters than pastry, such as medical care, housing, and social services for at-risk children. Last week, the U.S. Court of Appeals for the Fifth Circuit, which covers Louisiana, Mississippi, and Texas, lifted the injunction on Mississippi’s RFRA, meaning that the law now goes into effect. From the story by Mark Joseph Stern at Slate:

A federal judge had blocked the law before it took effect, ruling it violated the Establishment and Equal Protection Clauses. The 5th Circuit, however, held that the plaintiffs in the case did not have standing to challenge the law in court, rendering the injunction improper.

HB 1523, the Mississippi bill, constitutes an all-out assault on LGBTQ people and a sweeping effort to legalize discrimination. Under the law:

  • Businesses can refuse service to LGBTQ people.
  • Employers can fire (or refuse to hire) workers because of their sexual orientation and gender identity.
  • Adoption agencies, private and taxpayer-funded, can turn away same-sex couples and trans people.
  • Landlords can evict renters for being LGBTQ.
  • Medical professionals can refuse to treat LGBTQ patients.
  • Clerks and judges can refuse to marry same-sex couples.
  • Schools can exclude trans students from bathrooms that align with their gender identity and discriminate against all LGBTQ students.

And Texas Governor Greg Abbot this month signed a law that purports to give “protection of the rights of conscience for child welfare services providers”. Hat tip to progressive blogger Mindy Fischer for the news on Twitter. Her piece cites a report on the legislation from ThinkProgress, which I quote below:

The bill, House Bill 3859, will permit discrimination against LGBTQ couples wishing to adopt children, in addition to allowing LGBTQ children to be placed under the agencies’ care in “religious education.” The bill goes into effect in September.

As ThinkProgress noted when the bill passed the Texas House in May, the bill affects not only child placement services (think adoption agencies), but group homes, counseling services, care for abused children, and other resources for children with complicated family situations. The bill will have a broad reach, affecting organizations that provide a wide variety [of] care options for a large number of children.

When the bill goes into effect, those organizations can legally refuse to provide care for children on the basis of their sexuality or gender identity, or on the basis of the sexuality or gender identity of someone in their family, as long as the provider can cite “religious beliefs.” They will be able to do the same for same-gender couples wishing to adopt children, and ultimately for anyone whose situation can somehow be considered in violation of their religious beliefs. Texas state Rep. Gina Hinojosa (D) pointed out that it could be used to justify, for example, a Christian organization refusing to provide services to a Jewish family…

Prioritizing the religious beliefs of organizations who care for children over the religious beliefs, and human rights, of children, the bill will allow child welfare services to place LGBTQ children under their care into “religious education” that demonizes them or undermines their self-worth…

…But religious minorities will also be impacted by the bill, which allows child welfare organizations to place children who are members of religious minorities (Jewish or Muslim children, for example) into Christian schools.

It’s hard to believe that compulsory religious education could pass constitutional muster, since even minors have Free Exercise rights. But a lot of things have happened since November that are hard to believe.

An Establishment Clause challenge is also plausible. These so-called religious freedom bills use the neutral-seeming language of individual rights and tolerance to bring about a very specific sectarian outcome: allowing Christians with a heteronormative, religiously exclusivist interpretation of the Bible to evade civil rights protections for women, gays, and non-Christians. The state RFRAs not only give special treatment to religious people generally, but primarily benefit those who are duty-bound by their faith to avoid moral contamination from nonbelievers. This purity-based approach is specific to right-wing Christians (and Jews and Muslims, but I doubt there are many of those controlling the Mississippi child welfare department). Though I’d love to see liberal Christians refusing to pay state taxes under RFRA because they have a moral objection to the racist Mississippi police force or the Texas capital punishment system–wouldn’t the government just tie itself in knots to avoid applying the law then!

One could argue that the Mississippi and Texas RFRA privilege religious over non-religious motivations to the point that it creates an unconstitutional establishment. Modern Supreme Court case law has tended toward the view that the Establishment Clause not only forbids favoritism toward particular denominations, but also bans a general government preference for religion over secularism. However, conservative jurists like the late Justices Scalia and Rehnquist routinely pushed back against this broad interpretation. We can only pray that the court does the right thing next term. (Want citations? Sure you do. Check out Caroline Mara Corbin’s 2016 article in the First Amendment Law Review, “Justice Scalia, the Establishment Clause, and Christian Privilege”.)

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