By Holly Hollman, BJC General Counsel

Who would have thought that cake could be so controversial?  In one of the most visible cases this term, the U.S. Supreme Court will decide whether a Colorado baker has a constitutional right to refuse to make a cake for the wedding reception of a same-sex couple, despite state law requiring nondiscrimination in places of public accommodation (businesses open to the public). The impact of Masterpiece Cakeshop v. Colorado Civil Rights Commission could reach much further than cake shops and wedding receptions. At the crux of the baker’s claim is the nature of his business and whether the application of the nondiscrimination law to his business violates his freedom of speech or freedom of religion.

Masterpiece Cakeshop sells baked goods from a store in a strip mall and specializes in custom cakes, including wedding cakes. Colorado law requires that places of public accommodation do not refuse customers based on certain protected categories, including race, gender, religion and LGBT status. Jack Phillips, the owner of the business, refused to provide a custom cake for a gay couple and was found to have violated that law, a decision upheld by Colorado courts. His legal strategy at the Supreme Court focuses on demonstrating that his custom cakes are free speech (expressive conduct celebrating marriage) and, if provided to a same-sex couple, would send the message that he approves of a marriage that his religion forbids. He also claims a free exercise right to be exempt from this nondiscrimination law. With that claim, he asserts a limitless constitutional right that the BJC must oppose. His claim fails to recognize how religious liberty is protected in different contexts — here a commercial business open to the public and regulated by state law — and the harmful consequences of allowing ad hoc exemptions to nondiscrimination laws.

America’s free exercise tradition leans toward accommodation — respecting sincerely held religious beliefs regardless of their popularity — and generously defining the “exercise of religion” to avoid interference with religious practice. Religious beliefs about marriage and sexuality, expressed in many ways, are constitutionally protected and should be. Likewise, no one can or should be forced to participate in a religious ceremony, and Colorado law makes clear that the requirement of nondiscrimination for businesses open to the public does not apply to houses of worship. Free exercise law provides many protections for individuals and institutions that oppose same-sex marriage for religious reasons, but it does not provide a right for commercial vendors to refuse to sell goods and services to certain people in violation of a law by simply asserting a faith-based reason.

Two years ago, in Obergefell v. Hodges, the U.S. Supreme Court held that the federal Constitution provides a fundamental right to marry and that state bans prohibiting marriage between same-sex persons were unconstitutional. The BJC was not involved in that case. Our singular focus on religious liberty for all keeps us busy enough, even without taking a position on legal and theological debates beyond our mission. Regardless, we had a role to play both before and after the Court’s decision as legal and political changes sparked discussions about religious freedom and marriage.

Responding to those who said the Court’s decision was devastating to religious freedom, we explained that churches and religious individuals did not need to be alarmed. “Marriage” is used to refer to two distinct concepts: civil marriage and religious marriage. It is a religious act that occurs in the context of a religious community consistent with religious texts, traditions and understandings. It is also a civil institution that affords certain legal privileges and protections. The law treats these concepts differently. Obergefell v. Hodges was only about civil marriage.

Churches, we explained, would do what they’ve always done — follow their own rules and traditions to perform weddings and teach about marriage and sexuality. We stand with them to protect that right. The separation of church and state continues to ensure that churches and ministers make their own decisions about the marriage ceremonies they conduct. We knew that religious liberty claims would arise in various other contexts beyond houses of worship, particularly for religiously affiliated institutions such as universities and hospitals.

Beyond those cases, few individuals who hold religious views opposed to same-sex marriage were directly affected by Obergefell. But, for some government officials who issue marriage licenses and some who work in the wedding industry, the change in law led to burdens on conscience. Among those who object to same-sex marriage on religious grounds, individuals have drawn different lines about how to respond — from defying the law to resigning or changing their business plans, or continuing to work and acknowledging a limited role in the choices of others. Specific legal disputes, like the one in Masterpiece Cakeshop, depend on the particular facts of the case and on the interpretation of applicable law. Legislatures continue to be the best forum for negotiating compromises that can balance all interests and draw predictable lines. A couple of states (Utah and North Carolina) enacted specific legislation related to marriage licensing intended to balance LGBT and religious concerns, while other states tried unsuccessfully.

Religious and political disputes about LGBT nondiscrimination and religious objections can be painful. We have found that discussions about Masterpiece Cakeshop are more fruitful when they begin by acknowledging the legitimate interests on both sides of the dispute and the importance of understanding how religious liberty and nondiscrimination are protected in different contexts. The Colorado baker who refused to provide his custom cake artistry to a same-sex couple acted out of his sincere religious convictions about marriage and about his role in the celebrations that accompany weddings. A couple who entered a commercial business that provides goods and services to the public was denied those services because of their legally protected LGBT status and thus were victims of unlawful discrimination under the Colorado state statute. Both sides understandably feel aggrieved. This case is not a piece of cake, but the BJC believes that Colorado’s nondiscrimination in places of public accommodation law should prevail over this unlimited free exercise claim.

For more on this case, visit the BJC blog

From the September/October 2017 edition of  Report from the Capital. You can also read the digital version of the magazine or view it as a PDF.