With the
Supreme Court starting its 2017 term on the first Monday in October, we’ll soon
be getting a good idea of how the “Trump Court,” with the President’s pick Neil
Gorsuch, operates.
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And one of
the most closely watched cases this term will be Masterpiece Cakeshop v.
Colorado Civil Rights Commission.
Two of the
most precious rights Americans possess are the right to express themselves
freely and the right to practice their religion as they see fit. Both are enshrined in the First Amendment.
But these
rights are not absolute, and sometimes may clash with a duty toward others.
Masterpiece Cakeshop is a case that will test these limits.
It started
in July 2012. Charlie Craig and David
Mullins asked Jack Phillips, who owned the Masterpiece Cakeshop, to create a
custom wedding cake to celebrate their same-sex marriage. Phillips refused, saying he didn’t want to
promote a same-sex wedding due to his religious beliefs.
Court
experts believe the decision could go either way, and during oral argument
they’ll be watching Justice Kennedy. If it’s a close case, they think he’ll
most likely be the one to cast the deciding vote.
Craig and
Mullins filed a complaint with the Colorado Civil Rights Commission. The Commission decided against Phillips,
declaring he had discriminated on the basis of sexual orientation.
The
Commission ordered the cakeshop to change its policies, give its staff training
on discrimination, and provide quarterly reports for two years regarding steps
taken to comply with the order.
The Colorado
Court of Appeals upheld the decision and the Colorado Supreme Court declined to
hear the case. Last year, Phillips
petitioned the Supreme Court, claiming the Colorado ruling violates the Free
Speech and Free Exercise Clauses of the First Amendment. The Court agreed to hear his case.
Dr. John
Eastman, a professor and former dean at Chapman University’s school of law,
believes the free speech argument is strong, because Phillips’ work involved
“expressive conduct.” “Whether it’s a
photographer, or a cake maker, or a t-shirt designer,” he notes, “they’re
engaged in expressive activity” which is covered by the First Amendment. In
fact, in the case of “t-shirts or language on a cake, it’s actual speech.”
But Erwin
Chemerinsky, Dean of UCI School of Law, counters that the expressive activity
comes from the customers. “If I choose
the words on my cake, I’m engaging in expression. The baker is simply putting my words on a
cake.”
Further,
Chemerinsky notes that “even if this is about speech” that doesn’t mean the
government can’t intercede. And in this
case, “the interest in preventing discrimination outweighs” other interests. For instance, the baker would lose in court
if he were “against interracial marriage and won’t bake a cake for an
interracial couple.”
Eastman
suggests we “shift the facts” and imagine a “white racist who wants an
African-American baker to bake a cake celebrating the Ku Klux Klan.” If the courts tried to claim creating the
cake “doesn’t implicate free speech rights, people would be howling.” Phillips
was willing to serve homosexuals in his shop, he just didn’t want to be forced
to support their beliefs.
As for the
related free exercise of religion argument, Chemerinsky says that under the
Supreme Court decision Employment Division v. Smith (1990), state law—such as
Colorado’s anti-discrimination laws—may limit what people claim is their
religious right as long as the statutes are “neutral laws of general
applicability” and not aimed at religion.
Eastman
agrees that the Smith ruling makes the free exercise argument a tougher sell,
though he does wonder, with Justice Scalia—who authored the opinion—no longer
on the Court, if it isn’t time to revisit this precedent.
Court
experts believe the decision could go either way, and during oral argument
they’ll be watching Justice Kennedy. If it’s a close case, they think he’ll
most likely be the one to cast the deciding vote.
One thing is
for sure—no matter how it’s decided, the case will be a blockbuster. Eastman believes it could be bigger than the
Hobby Lobby opinion a few years back, which allowed a company to be exempt from
a contraceptive mandate due to religious objections. That case was limited in scope, but if the
Court found for Phillips, it could mean there’s a constitutional right that
would trump numerous statutes across the nation.
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