INDIANAPOLIS -- The Supreme Court of the United States rendered its much-anticipated decision in the case of a Colorado baker accused of discrimination on Monday – but in doing so did little more than “kick the can down the road,” according to a professor at Indiana University’s Robert H. McKinney School of Law.
Justice Anthony Kennedy wrote the majority opinion for the court’s 7-2 decision in Masterpiece Cakeshop, LTD. Et al v. Colorado Civil Rights Commission.
The case centered around Jack Phillips, an “expert baker and devout Christian,” according to the lawsuit, who refused to create a cake for a same-sex couple’s wedding because of his religious beliefs.
Phillips appealed to the Supreme Court after the Colorado Civil Rights Commission, and then the Colorado Court of Appeals, ruled his First Amendment rights were not violated by the Colorado Discrimination Act’s prohibition against discrimination based on sexual orientation.
SCOTUS ruled Monday in Phillips’ favor after finding that the Colorado Civil Rights Commission did not hear the case “with the religious neutrality that the Constitution requires.”
READ MORE | Supreme Court rules in favor of baker who refused to make wedding cake for gay couple
“The Civil Rights Commission’s treatment of [Phillips’] case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection,” Kennedy wrote in his majority opinion.
Kennedy also noted that a member of the commission, in a public hearing, stated that religion and freedom of religion had “been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust… And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
Kennedy wrote that the comments were “inappropriate” and disparaging to Phillips’ sincerely held religious beliefs.
All of that, according to the court’s majority, doomed the commission’s decision against Phillips. But it also allowed the court to rule on the case at hand without touching the underlying constitutional issues, according to IU McKinney School of Law Professor John Hill.
“The court’s decision here is pretty narrow,” Hill said. “It’s essentially not that he has a broad religious, or that bakers have broad religious claims to discriminate against gays, but rather, if a civil rights commission or other governing body is going to address these sorts of cases, it has to treat the baker or the Christian or the religious claims with respect, and neutrally, and they didn’t do that here.”
Hill has been a professor at IU’s law school since 2003. He is the author of five books, most recently “After the Natural Law: How the Classical Worldview Supports Our Modern Moral and Political Ideals,” and numerous law review and journal articles. He holds a J.D. and Ph.D. in philosophy, both from Georgetown University.
According to Hill, SCOTUS’s decision gave Phillips a win while dodging the competing constitutional arguments pitting religious freedom and freedom of expression against anti-discrimination laws.
“The court really was kicking the can down the road here, a bit. Even the majority opinion – it was a 7-2 opinion – but even the majority opinion said very clearly, for example, that a Christian baker cannot refuse to sell a cake to a gay couple, or a lesbian couple,” Hill said. “It’s really a decision based on the way the process took place. It’s not really a substantive decision. And so it leaves open the question about what happens when a governing body does act with respect and neutrally toward a religious claim. That’s the question that’s yet to be answered.”
Hill said he expects future cases to arise seeking to answer the same questions – and that Kennedy’s vote might go a different direction, given different circumstances.
That’s a scenario Kennedy himself foreshadowed as possible in his own opinion, writing, “… it is proper to hold that whatever the outcome of some future controversy involving some facts similar to these, the Commission actions here violated the Free Exercise Clause; and its order must be set aside.”
When and if those future cases come, Hill says he expects they will focus on free speech arguments – rather than freedom of religion arguments – just like Phillips’ attorneys did.
“The baker’s attorneys rightly sensed that his best shot was to make not a religious liberty claim, but a freedom of speech claim,” Hill said. “Most of the oral arguments centered around whether he had a freedom of speech claim – in other words, the government can’t compel you to say anything or to make statements which go against your basic beliefs, and we’ve got cases on that. In the future, I think that’s where the action is going to be. Namely, people of Christian faith or other faiths who deny service to gays or lesbians under these circumstances will have a better shot of making a free speech claim than a religion claim.”
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