Written by Don Byrd

Later this year, the U.S. Supreme Court will hear oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a difficult and highly anticipated case that could have a significant religious liberty impact. The Court will determine whether a Colorado baker, who refused on religious grounds to provide a wedding cake for a same-sex couple, is entitled under the U.S. Constitution to an exemption from state law barring businesses open to the public from discriminating on the basis of sexual orientation.

For more background, the Baptist Joint Committee’s Holly Hollman discussed the stakes of the case and provided some helpful context in an earlier column. As I pointed out in a subsequent post, she emphasized the difficulty involved in such disputes and the painful rhetoric that often arises as a result. After considering the facts posed by this particular case, in which the baker’s objection goes far beyond participation in a religious ceremony, she wrote that the baker “asserts a limitless constitutional right that the BJC must oppose.”

Expanding on that, the BJC has joined the United Church of Christ in filing a brief with the Supreme Court in the case, arguing that the baker is not entitled to a religious exemption. The brief makes a few central arguments, described below:

First, nondiscrimination laws like the one involved in the Masterpiece Cakeshop case actually further the cause of religious liberty, because they prohibit businesses from discriminating on the basis of religion. That protection ensures that one’s faith cannot limit access to a marketplace that is generally open to the public.

Second, as long as houses of worship and other places used primarily for religious purposes are exempt from the law, and the Colorado statute is limited to commercial activity, the Constitution does not require a religious exemption for business owners who are not being required to directly participate in a religious ceremony. In this case, the brief notes, the baker was not being asked to attend or participate in a wedding ceremony, but to provide a cake for a celebration taking place much later and on the other side of the country. 

Lastly, the high costs to human dignity and to religious freedom if an exemption were to be granted outweigh the burden on the baker’s exercise of religion. The brief warns, “[u]pholding [the baker’s] claim would invite a variety of religious exemptions that would fundamentally change expectations of equality in the commercial sphere. The rule that the baker and his place of business wish to establish would subject any member of the public to the possibility that they might be denied service, at any time, without warning.”

You can read the brief here.

In a statement announcing the brief, Hollman sums up the BJC’s position

“Free exercise law provides many protections for the religious beliefs and actions of individuals and institutions that oppose same-sex marriage for religious reasons,” said Holly Hollman, General Counsel of the Baptist Joint Committee for Religious Liberty. “But it does not provide a right for commercial vendors to refuse to sell goods and services to certain people in violation of a nondiscrimination law by simply asserting a faith-based reason.”

Importantly, many observers view this case as a free speech/freedom of expression case and believe it will be decided on those grounds, which means the Court may not even consider the religious liberty arguments offered on both sides. We should have an indication fairly soon as to the extent of the Court’s interest in reaching the religious liberty issues. Oral arguments in the case are scheduled for December 5.