Business owners can move forward in the wake of recent Supreme Court decisions with guarded hope in their battle to practice their faith convictions in the marketplace, religious liberty advocates say.
When the high court ruled June 4 in favor of a Colorado cake artist, it sent a promising — though not conclusive — signal to others whose businesses have been harmed or threatened by state or local government actions.
In their 7-2 decision, the justices ruled the Colorado Civil Rights Commission violated the religious free exercise clause of the First Amendment and demonstrated in its action “religious hostility” toward Masterpiece Cakeshop owner Jack Phillips, a Christian who had declined to design and decorate a cake in celebration of the wedding of two men.
On June 25, the Supreme Court annulled a lower-court ruling against Washington state florist Barronelle Stutzman, who refused to design flowers for a same-sex wedding. The justices instructed the Washington Supreme Court to reconsider its previous unanimous decision against Stutzman in light of their Masterpiece Cakeshop opinion.
Meanwhile, a host of wedding vendors who believe marriage is only between a man and a woman, as well as other business owners, await the resolution of similar cases in the courts. They have faced intense pressure as a result of refusing to provide their services for gay weddings and other events that conflict with their religious beliefs.
The Supreme Court’s actions in June offer a mix of optimism and uncertainty, religious liberty specialist Travis Wussow said.
“It is encouraging that the court sided with Jack Phillips in Masterpiece and ruled definitively the religious hostility he experienced was a violation of the First Amendment,” said Wussow, general counsel and vice president for public policy of the Ethics & Religious Liberty Commission.
“However, the court declined to rule on several of the broader questions posed by Jack Phillips in his case, including whether or not the creation of a wedding cake constitutes speech under the First Amendment and whether the state can therefore compel that speech,” said Wussow in an email interview.
In the Masterpiece opinion, the justices clarified that the government “cannot show hostility or animus toward the religious beliefs of those making First Amendment claims,” he said. “We’re therefore optimistic that artists working in the wedding industry will therefore get a fair day in court and can’t be treated with hostility in the process.”
Yet, Wussow said, the ruling “leaves several important questions unanswered, and it will be up to the lower courts to answer them before the Supreme Court takes up another of these cases.”
In the Masterpiece opinion, Associate Justice Anthony Kennedy — who has since retired — wrote that the Colorado Civil Rights Commission did not treat Phillips’ case “with the religious neutrality that the Constitution requires.” Hostility was demonstrated, Kennedy said, in the disparaging language from the commission to describe Phillips’ beliefs and in the panel’s finding that at least three other bakers acted legally in refusing to create cakes with messages that opposed same-sex marriage.
The result of similar cases “in other circumstances must await further elaboration in the courts,” Kennedy wrote, “all in the context of recognizing that 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.”
The business owners in whose cases the courts will be called on to balance these considerations include:
• Stutzman, who declined to design flowers for a longtime customer’s wedding because using her artistic ability to take part in the ceremony would violate her beliefs. Before the high court’s recent remand, the Washington Supreme Court affirmed in 2017 a lower-court decision, finding the U.S. Supreme Court’s 2015 ruling that legalized gay marriage means discrimination “based on same-sex marriage constitutes discrimination on the basis of sexual orientation.” The suit by state Attorney General Bob Ferguson could cost Stutzman her home as well as her business.
• Aaron and Melissa Klein, owners of an Oregon bakery who declined to design and bake a cake for a lesbian couple’s commitment ceremony. The state Supreme Court declined June 21 to review a 2017 opinion by the Oregon Court of Appeals against the Kleins. The appeals court upheld a decision by the Oregon Bureau of Labor and Industries that found their refusal was based on unlawful discrimination against homosexuals. The state agency approved a $135,000 fine against the Kleins, who closed their shop and moved their business to their home. Appealing to the U.S. Supreme Court is their next step.
• Blaine Adamson, owner of Hands On Originals in Lexington, Ky., who refused to print T-shirts for the Lexington Pride Festival at the request of the Gay and Lesbian Services Organization. The Lexington-Fayette Urban County Human Rights Commission ruled against Adamson, but two courts have upheld his right to print only messages that are faithful to his beliefs. The case is now before the Kentucky Supreme Court.
• Joanna Duka and Breanna Koski, owners of Brush & Nib Studio in Phoenix who are challenging a city ordinance requiring them to use their painting and calligraphy business for same-sex weddings. The Arizona Court of Appeals upheld June 7 a lower-court decision in 2017 against the artists, and they have said they will appeal the ruling.
• Carl and Angel Larsen, Minnesota filmmakers who decline to create wedding videos for same-sex couples as owners of Telescope Media Group. A federal court has refused to block enforcement of a state law that punishes their refusal to provide their services for gay weddings, and it dismissed the Larsens’ lawsuit. They have appealed the ruling to the Eighth Circuit Court of Appeals in St. Louis.
In an early case in the clash between religious and sexual liberty, Jonathan and Elaine Huguenin — owners of a New Mexico photography business — lost all the way to the Supreme Court after they denied a request to photograph a lesbian commitment ceremony. In 2014, the high court refused to review a New Mexico Supreme Court decision that the Huguenins had violated the state’s ban on sexual orientation discrimination. The Huguenins no longer have a photography business, according to Alliance Defending Freedom (ADF), which represented them.
Jim Campbell, senior counsel for ADF, said the high court’s June actions “were significantly beneficial” for citizens concerned about religious freedom, though “they also remind us that there is much work yet to be done.”
The Masterpiece decision not only clarified that the government cannot demonstrate hostility toward people of faith but “made it clear that the government was wrong to punish Jack Phillips for living consistently with his religious beliefs, and it made it clear that the government must both tolerate and respect the religious belief that marriage is the union of a man and a woman,” said Campbell. “[W]ith those clear principles established, folks who are defending religious freedom will go forward and seek to build upon what the court established in Masterpiece.”
ADF represented Phillips before the Supreme Court, and it is representing Stutzman, Adamson, Duka and Koski, and the Larsens.
“We remain very hopeful,” Campbell said of ADF’s view of the cases, which he described as similar to that of Phillips. “I think that there’s a lot of stuff that the [Supreme Court] said that will help folks that we represent in other cases.
“[F]or instance, one of the things that the court said in the Masterpiece Cakeshop decision is that when the government treats people unequally – and specifically treats people of faith more harshly than others — then that shows evidence of anti-religious hostility,” he said. “So what I think that we’ve seen from all of this is that when you look at the various cases around the country, you see a lot of this unequal treatment going around.”
Campbell contrasted the way Colorado punished Phillips for declining to create a cake celebrating a same-sex wedding while not reprimanding cake artists who refused to make a cake that opposed gay marriage.
First Liberty Institute represents the Kleins, and senior counsel Stephanie Taub said her organization is “hopeful [the Masterpiece opinion] could have a positive effect on cases like” that of the Oregon bakers.
“There are certain aspects that are very similar,” she said in a phone interview, adding that the Oregon Bureau decision “did have the same kind of anti-religious bias that caused” the Supreme Court to rule for Masterpiece Cakeshop.
In the Kleins’ case, a commissioner of the state bureau “made several public statements about the Kleins’ case before even hearing it, which we believe shows his bias,” Taub said. He implied “people with certain religious beliefs need to be rehabilitated,” which she described as “a clear demonstration of anti-religious bias.”
— by Tim Strode | BP