It’s considered to be the “biggest religious liberty case of the year”—and this morning, the Supreme Court ruled 7-2 in favor of Jack Phillips, the owner of Colorado bakery Masterpiece Cakeshop, who had refused (on religious grounds) to make a gay couple’s wedding cake.
Justice Anthony M. Kennedy wrote the opinion for the court, saying that the “neutral and respectful consideration to which Phillips was entitled was compromised here. The [Colorado] Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”
According to a report from our sister publication Christianity Today, many had predicted “that the Supreme Court would end up split over the much-anticipated Masterpiece Cakeshop decision, [but] the rest of the court concurred with Kennedy, with only Ruth Bader Ginsburg and Sonia Sotomayor dissenting.”
How does this ruling affect pastors, churches, and Christian business owners?
In response to the ruling, Church Law & Tax senior editor Richard Hammar outlined the potential implications:
“Let’s address pastors first. The Supreme Court made an important comment in its ruling pertaining to the religious liberty of pastors. It said: ‘When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion.’
“Second, how does the Court’s ruling affect churches? It doesn’t, at least directly, since the Court was addressing the constitutional rights of Christian business owners. One important issue that was not addressed by the Court’s ruling is the application of the nondiscrimination provisions in public accommodation laws to churches that engage in commercial activities on their premises. For example, many churches allow their sanctuary to be used for marriages and other events by nonmembers—and charge a fee that in many cases has generated a substantial amount of revenue. Does this activity make the church a place of public accommodation subject to the nondiscrimination provisions in a state public accommodations law (which often include a ban on discrimination based on sexual orientation, gender identity, and marital status)? It is true that many of these laws contain a specific exemption for religious organizations, but the application of such an exemption to a church that frequently rents its facilities to members of the general public is largely untested. The Court’s decision leaves this question on the table.
“A third constituency affected by the Court’s ruling is Christian-owned businesses. This was the constituency that was the focus of the Court’s attention. Unfortunately, the Court provided little guidance, since its ruling that the bakeshop owner’s religious freedom had been abridged was based entirely on the hostility to his religious beliefs manifested by the Colorado Civil Rights Commission. There was no analysis of the substance of the bakeshop owner’s constitutional claims. The takeaway point is that Christian business owners who engage in religious-based discrimination in the provision of goods or services to the public cannot be penalized for doing so by a civil rights commission or court that manifests a hostility to those beliefs.
“But the Court’s opinion suggests that the ruling could have gone the other way had the Colorado Civil Rights Commission been less overtly contemptuous of the bakeshop owner’s religious beliefs. Obviously, this suggests a pathway for administrative agencies and courts to follow in elevating state and local bans on discriminatory practices by places of public accommodation over the sincerely held religious beliefs of Christian business owners. In this regard, the Court concluded its opinion with this observation: ‘The outcome of cases like this in other circumstances must await further elaboration in the courts, 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.’”
Frank Sommerville, editorial advisor for Church Law & Tax, also offered his thoughts:
“While avoiding the bigger issue of whether Colorado’s antidiscrimination statute violated the baker’s freedom of religion, the Court affirmed that government officials must administer laws in a way that is neutral towards religion. The court held that the baker’s First Amendment rights were violated because the Colorado Civil Rights Commission commented negatively about the baker’s religious beliefs while supporting other bakers who refused to include anti-gay wording on cakes. The differing treatment demonstrates that the law was not administered in a manner that was neutral toward religion. Also, the state cannot discriminate using a certain point of view without violating the Free Speech portion of the First Amendment as well. The Commission ignored that the baker offered other services to the offended customers while it found that such an offer was a reasonable accommodation when the anti-gay wording bakers made similar offers.”
Stuart Lark, also a Church Law & Tax editorial advisor, commented on the Court’s affirmation of religious freedom and how dignity played into the decision:
“In responding to today’s Masterpiece Cakeshop decision, we should first be grateful that we live in a country with perhaps more religious freedom than any other country, ever. That was true prior to today’s decision, and it remains true. The Court today affirmed core principles underlying religious liberty, including the prohibition on government hostility to religion. But the actual decision turned on unique facts in the case that are unlikely to arise in future cases.
“Instead, a main takeaway from the decision is that dignity remains a central focus on the Court, both in terms of religious liberty and sexual liberty. As a result, our churches and ministry organizations should connect our beliefs and policies regarding human sexuality and marriage to our theology of dignity and to the cross. Then, we should position our organizations to fit within any available religious exemptions (the state law at issue in the Masterpiece case exempted churches and places used principally for religious purposes, but the cake shop did not claim this exemption). Finally, and most importantly, we should follow Peter’s instruction to present our beliefs with gentleness and respect, and with the conviction that we are blessed, we are not afraid, and we are not victims.”
Erika E. Cole, attorney and editorial advisor for Church Law & Tax, explained the “legal tightrope” the Court was walking in this case and provided three steps for churches in light of the ruling:
“The Court did not hide from the fact that it was walking a legal tightrope—balancing the free exercise of religion on one side and the right of a gay couple to access goods and services without discrimination on the other. Finding that the Colorado Civil Rights Commission mishandled the matter by disregarding the sincerely held beliefs of Phillips, the Court reversed the Commission’s ruling against Phillips and stopped short of determining which side carried the greater weight.
“Ultimately, the Court concluded that ‘the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.’ The Court emphasized that the government ‘cannot impose regulations that are hostile to the religious beliefs of affected citizens.’ Noting the Court’s recognition of the highly regarded protections due to religious organizations and those teaching such beliefs, your church would do well to: (1) Review your current articles of incorporation and bylaws for clear references to the biblical basis for your beliefs, especially in areas involving gay marriage; (2) adopt an effective facilities use policy if your church rents out its facility for any reason, including (and maybe especially) for weddings or related celebrations; and (3) have your church leaders trained and knowledgeable about the above-referenced legal issues. Church leaders are on the front line and should speak in a voice representative of Christ and reflective of the needed knowledge of these relevant issues.”
We will continue to monitor the responses to this ruling, providing more reactions and insights from our legal experts. In the meantime, learn more about public accommodation laws—and how they affect churches—with our Church Issues: Same-Sex Marriage and Gender Identity resource and “Is Your Church Breaking Public Accommodations Laws?”
Emily Lund is assistant editor for Church Law & Tax.
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