His crime, according to the Colorado Court of Appeals, is that he declined to “design and create a cake to celebrate [a] same sex wedding.” This is a far cry from the false accusation that “he refused to serve gays.” As the Court’s ruling details, Phillips was one of four different Colorado bakers who declined to bake cakes conveying a message that was objectionable to the baker. Nevertheless, he was the only one who was punished for it. He was also the only Christian.
On Monday the Court ruled that “[t]he Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion."
Phillips contested both his right to free speech and his right to free exercise of religion, but the Court declined to address his free speech claim. It limited the ruling only to the free exercise of religion. Some were disappointed by the “narrowness” of this ruling.
I understand their point, but I also think this limitation is helpful. Deferring the free-speech question to another day allowed the Court’s wide and bipartisan majority (7-2) to nail down the free exercise of religion in seven important ways.
First, the Court declares plainly: “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” This principle is not contradictory to the “general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services.”
At last, the Court has put an end to the false narrative that advocacy for a complementary view of marriage is inherently discriminatory. There is discrimination against persons and there is the rejection of an idea. The two are not the same thing. The first is wrong and the second is not, and the Court has plainly recognized this in a watershed decision.
By settling this issue, the Court is able to focus on making sure that public accommodations law is “neutral and generally applicable” (9). With any luck, this will calm the debate. Only if we can express and hear disagreeable opinions without the threat of personal-claims court can we learn to reason and compromise like adults.
Second, Kennedy wrote on page 10, “When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral or religious grounds could not be compelled to perform the ceremony." Public accommodations laws and ordinances are not “neutral or generally applicable” if they threaten anybody for declining to perform a wedding on moral or religious grounds.
If Kennedy had written this decision two summers ago, the Wyoming Supreme Court could not have ruled that the state of Wyoming can compel a judge to perform a wedding ceremony. Of course, "clergy" could be restricted to its narrowest sense to exclude judges and magistrates, but that would also exclude L.D.S. bishops and other plainly religious marriage officiants, obviously contrary to the Court's intent.
Third, the court scolded the Colorado civil rights commissioners who argued that a person can believe "whatever he wants to believe," but cannot live by those beliefs “if he decides to do business in the state." They responded unambiguously, "the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain" is an unconstitutional "hostility” toward religion (12). Free exercise is not just for clergy and private citizens but for businesses as well.
Fourth, Kennedy singled out one commissioner’s statement as especially hostile, saying, "To describe a man's faith as 'one of the most despicable pieces of rhetoric that people can use' is to disparage his religion in at least two distinct ways." He added that "this sentiment is inappropriate for a [government] commission."
I hope that Wyoming’s Commission on Judicial Conduct and Ethics takes note and apologizes for its own statement about Judge Ruth Neely. It stated in the public record that Neely’s belief in the Scriptural definition of marriage is “repugnant,” and that “somebody with that attitude really should not be on the bench.”
This is exactly what the Court said, “is inappropriate for a [government] commission.” Neil Gorsuch spelled out the consequences of such governmental hostility: "No bureaucratic judgment condemning a sincerely held religious belief as 'irrational' or 'offensive' will ever survive strict scrutiny under the First Amendment" (Gorsuch, concurrence 7).
Fifth, Kennedy also explained that it is impermissible for the government to characterize a man’s “sincerely held religious beliefs” as “merely rhetorical—something insubstantial, and even insincere.” This is to “disparage his religion,” he wrote (14). As one who has been on the receiving end of such libelous language, I especially appreciate the Court’s respect for the personal integrity of those whose religion is consistent, historical, and deeply held.
Sixth, going back to the question of what is a “neutral and generally applicable public accommodations law,” the Court noted that the Civil Rights Commission applied differing standards to four different bakeries who declined to make specific cakes. In the case of the three that refused scriptural quotations about marriage, the Commission ruled that since the baker was personally offended by the message, he was free to decline without legal consequence. In Phillips’ case, however, they ruled that his personal offence was irrelevant.
On this point, the split was 5-4 with Ginsberg, Sotomayor, Breyer and Kagan arguing against the majority. But after weighing their arguments, the majority rejected them. It ruled that there must be a uniform standard of judgment. "The [state] cannot ... apply a more generous legal test to secular objections than religious ones" (Gorsuch 6).
Seventh, the Court reaffirmed long-standing case law that it is never the place of the government to decide matters of religion. Citing cases from 1943 and 2017 it said, “Just as ‘no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,’ …it is not …the role of the State to prescribe what shall be offensive” (16).
Whatever else the state of Colorado did to Phillips, it “elevate[d] one view of what is offensive over another and sen[t] a signal of official disapproval of Phillips’ religious beliefs” (16). This is a clear violation of the free exercise of religion. It should never have gotten this far. Now that an overwhelming majority of the Court has struck it down, America are reassured that the government has no place in deciding matters of faith.
These seven takeaways put to rest many unconstitutional arguments that have been made in Wyoming over the past several years. For this alone we should be grateful. The Court’s ruling is guidance for all public servants from the school board to the president. It clarifies that the government simply cannot run roughshod over the full and free exercise of religion in laws, ordinances, or policies.
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