But how can their dissent be lawfully expressed? The five-vote majority in 2015 papered over this question by insisting that the ruling applied only to civil marriage — and thus posed no burden on the right of religions to choose which marriages to bless. As we’ve learned since, however, sanctifying marriages is not the only way religion enters this picture.
You may remember Jack Phillips, baker, and his Masterpiece Cakeshop in Lakewood, Colo. Phillips is a devout conservative Christian who sees his work as an expression of talents given to him by God. Therefore, he chooses not to sell products that he believes to be offensive to God. He doesn’t do Halloween cakes, for example — and he doesn’t do wedding cakes to celebrate same-sex unions.
The Colorado Civil Rights Commission found this to be a violation of anti-discrimination laws; the case went to the Supreme Court. In 2018, the justices dodged the question of the baker’s rights by ruling that he had not received a fair hearing.
On Thursday, the Supreme Court again dodged the problem of religious freedom vs. discrimination. This time, the question was whether the city of Philadelphia could force Catholic Social Services to include qualified same-sex couples as prospective foster parents. Seizing on the fact that Philadelphia’s anti-discrimination law allows for certain exemptions, a unanimous Supreme Court ruled that fairness required an exemption be considered for CSS.
Beneath the unanimity, however, lay a splintered court, with a number of justices saying the bomb must finally detonate. Either religious freedom protects those who treat same-sex couples unequally in public life, or it doesn’t.
Justice Neil M. Gorsuch, in a concurring opinion, counted the cost of dodging this uncomfortable question: “Individuals and groups across the country will pay the price” of endless litigation over the unsettled question, “in dollars, in time, and in continued uncertainty about their religious liberties.”
Religious liberty or freedom from discrimination: Advocates on both sides insist the question is simple. In fact, it is very difficult. Two bedrock principles of the Constitution are brought into direct conflict. Americans have a right in their public lives to be free from discrimination based on who they are. This right finds expression in laws requiring businesses and agencies that serve the public to do so without discrimination.
Americans also have a protected freedom of belief and expression. They cannot be compelled by the government to express or reject any religious views or political opinions.
No case puts the matter more sharply in relief than the matter of the baker and his cakes, which may well be headed back to the Supreme Court for round two. A transgender individual has asked Phillips to create a celebratory cake. When Phillips refused, a state district judge levied a fine without any of the gratuitous commentary that previously gave the justices their wiggle room.
The fact that these bedrock principles have collided inside a bag of cake frosting does not make them frivolous. Either the baker’s freedom of belief allows him to sell customized cakes only to those people whose identities and conduct comport with his religious beliefs, or the would-be cake buyers of Lakewood have a right to decide what Phillips will write on cakes as long as he operates a public business.
Underlying this dispute — the really explosive part — is a slippery slope. It seems monstrous to think that artisans have no control over the expressive content of their creations. Surely a seamstress who willingly provides choir robes and judicial robes should not be compelled to make robes for a Ku Klux Klan rally.
You and I might agree that a same-sex wedding is not remotely like a Klan rally. But some number of religious people would say that both are examples of sinful gatherings. I greatly prefer our view of the matter, but I’m not sure the government should — or rightfully can — put those who disagree out of business.
In a short but instructive concurring opinion to the Philadelphia ruling, Justice Amy Coney Barrett laid out difficult questions that will hit like shrapnel if and when this bomb goes off. Her insight reminds us that, of all the ways change can be made in a free society — by persuasion, by compromise, through boycotts and marches and social media campaigns — lawsuits can be the most destructive. “I’ll take my business elsewhere!” may be preferable to “I’ll see you in court!”