Michelle Quist: Government cannot hold religious views in contempt

Last October I wrote a preview of a few cases in front of the United States Supreme Court that Utahns would be interested in. On Monday, the Court published its opinion in one of those cases — Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

To the surprise of many legal scholars, the opinion (1) was decided 7-2, with Justices Stephen Breyer and Elena Kagan agreeing with the more conservative justices and Justice Anthony Kennedy, who wrote the opinion, and (2) reversed the Colorado Court of Appeals’ decision that upheld the commission’s decision against the baker (the Colorado Supreme Court did not hear the case).

In other words, the baker, who refused to bake a cake to commemorate a gay wedding, won.

Many conservatives will be quick to claim victory based on the court’s opinion, and a victory it was — for the baker in Colorado. The court, though, went out of its way to say, “The outcome of cases like this in other circumstances must await further elaboration in the courts.”

What made the facts of this case so determinative? Two words: religious hostility. In short, government, and its officials, cannot show, or act on, contempt for religion or religious views.

As Kagan wrote in a concurring opinion, when someone claims a religious objection, “state actors cannot show hostility to religious views; rather, they must give those views ‘neutral and respectful consideration.’”

In a separate concurring opinion, Justice Neil Gorsuch wrote, “No bureaucratic judgment condemning a sincerely held religious belief as ‘irrational’ or ‘offensive’ will ever survive strict scrutiny under the First Amendment.”

In Masterpiece, Jack Phillips, a Colorado baker and devout Christian, appealed a decision and fine imposed against him by the Colorado Civil Rights Commission for refusing to bake a cake to commemorate a gay wedding, and therefore refusing to provide “full and equal service.” At the time, Colorado did not recognize gay marriage. Phillips believed that making a cake would be an act of endorsing or participating in the marriage.

Phillips argued that requiring him to bake a cake for a gay wedding would violate his religious beliefs as well as his right to freely express himself. Colorado, in turn, argued that its anti-discrimination law targets conduct, not speech, and when a business opens to the public, it may not discriminate against a person based on sexual orientation.

The court began its opinion with a reminder that “our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.”

The court also confirmed its support for the principle that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

As a general rule, though, “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 under a neutral and generally applicable public accommodations law.”

The “neutral and generally applicable” part was what turned this case.

During a commission meeting that partly decided whether Phillips’ objection was protected, multiple commissioners expressed animosity toward Phillips’ religious beliefs. One commissioner compared the plaintiff’s religious beliefs to other periods of “discrimination throughout history, whether it be slavery, whether it be the holocaust.”

Kennedy, writing for the majority, responded, “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: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere. … This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti- discrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation.”

The court therefore held that it could not “avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication.”

The fact is, government cannot claim certain religious beliefs are legitimate or not.

We still don’t know if a state can force a baker to make a cake for a gay wedding. Instead of waiting for the court to make that decision, I suggest that business owners make accommodations where they can — like hiring an employee who won’t be offended by making such a cake. Gay couples can also help by not forcing those with religious beliefs against gay marriage to somehow participate in their wedding.

There are other bakeries. And it’s really just a cake above love.

Let’s focus on the love part.

Michelle Quist is an appellate attorney, political insider and regular contributor to The Salt Lake Tribune.