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By Mark Satta*
Last month, Aaron and Melissa Klein, a couple who owned a bakery in Oregon, asked the Supreme Court to review a ruling from the Court of Appeals of the State of Oregon, which held that the Kleins had violated Oregon state law by discriminating based on sexual orientation when they refused to bake a custom cake for a same-sex wedding. The Kleins, like the baker in the Masterpiece Cakeshop case, argue that such a ruling violates their First Amendment rights.
The Supreme Court’s narrow ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission this past June avoided answering any substantive questions about whether a baker can refuse to bake a cake for a same-sex wedding when doing so would violate the baker’s sincerely held religious beliefs. Given that the Masterpiece decision left unanswered the most contentious questions about how to balance preservation of LGBT civil rights with potential infringement on religious free exercise and free speech rights in situations like this, it is unsurprising that the Court has been asked again to rule on this issue.
This request has been made of a very different Supreme Court now that the opinion writer in Masterpiece, Justice Anthony Kennedy, has since retired and been replaced. Given the new composition of the Court, now is a good time to review what happened in Masterpiece and to think about what the impact the new composition of the Supreme Court might be should the Court choose to hear the Klein’s case.
Upon reading headlines this past June that the Supreme Court sided with baker, Jack Phillips, over the gay couple denied a wedding cake in the Masterpiece Cakeshop case, I was discouraged. But after reading the Court’s opinion, my discouragement faded given the narrowness of the ruling and the substantial amount of common-sense reasoning the Court expressed about balancing gay civil rights with religious freedom rights. Yet I fear that much of that common-sense agreement could be undone if the Supreme Court finds itself without a swing vote.
Because some LGBT civil rights advocates saw Masterpiece as a loss for LGBT civil rights, my optimism about the role Masterpiece may play in the development of LGBT civil rights requiring some unpacking. Here are three reasons why I think the Masterpiece decision allows for cautious optimism.
First, the Court didn’t take a position on the merits of Phillips’ religious freedom and free speech violation claims. Rather, the Court concluded that during the process of reviewing Phillips’ claims, some of the members of the Colorado Civil Rights Commission made statements that “cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.” In short, the Court chose to toss out the ruling of the Commission because of religious bias on the part of some of the Commissioners. Reasonable minds can disagree over whether there really was improper bias. I’m not convinced there was myself. But the issue of whether a statement about the historic use of freedom of religion to justify discrimination is an example of impermissible bias deals more directly with First Amendment jurisprudence, and less directly about LGBTQ civil rights.
Second, the Court’s ruling treated Obergefell v. Hodges—the 2015 Supreme Court case that recognized the right to same-sex marriage—as settled law both in the majority opinion and in Thomas’ concurring opinion. (Although in the case of Thomas this came along with predictions of future conflict between LGBTQ civil rights and religious freedom rights and reason to think he is inclined to favor the latter.)
Third, and most importantly, the Court treated several related issues as settled; and settled in an appropriate way. For example, Justice Kennedy, writing for the Court, stated that “any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”
If the Court sticks to this sort of position, even if the Court were erroneously to determine at a later date that bakers like Phillips could refuse to make cakes for same-sex marriages, such a ruling would not allow for a slippery slope in which gay people could be denied their right to purchase a variety of other items for their weddings, much less denied their right to service more generally.
On the other side, Kennedy also wrote that “[w]hen it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion.” If the Court sticks to this position, even if they were to properly determine that bakers who sell wedding cakes can’t refuse service to same-sex couples, such a ruling would correctly not allow for a slippery slope in which clergy, whose profession is typically intimately tied up with religious conviction, would be forced to conduct a ceremony that violated their religious convictions.
With issues like these treated as settled on either side of the issue presented in Masterpiece, I think what we’re seeing in Masterpiece is the Court grappling to determine where the precise line should be drawn in seeking to maximize and preserve both the civil rights of LGBT people and religious freedom rights. Given our current cultural context, I think Masterpiece sits squarely in the center of an unavoidable point of tension between these two kinds of rights. A Court that is struggling with exact boundary lines is one that is often more or less in the right place. It’s important to note that while I think the Court is in the proper area concerning this particular LGB civil rights question, that the Supreme Court, and federal government generally, is still woefully behind in recognizing LGB, and especially Trans, civil rights in other domains.
However, it is hard to tell how much of the Court’s balance this past June was the product of Kennedy as a swing vote sympathetic to LGBT civil rights. While Kavanaugh’s judicial record on LGBT civil rights is scant, by taking a look at those who are endorsing him along with his unartful dodges of Senator Cory Booker’s questions related to gay civil rights during his confirmation hearings, it seems reasonable to worry that Kavanaugh could upset this balance. Kavanaugh could join with the four conservative to give the Court a five-member majority. Justice Thomas, though his concurrence treated Obergefell as settled law, was prescient in identifying that the LGBTQ and religious liberty concerns would “inevitabl[y] . . . come into conflict with religious liberty.” With Kennedy removed and Kavanaugh now on the bench, this conflict’s borders have been called into question. The rising case could reach a Court that is willing to halt, or perhaps even undo, progress in LGBT civil rights.
*Mark Satta is a 3L at Harvard Law School and the Executive Online Editor for the Harvard Law & Policy Review.
Featured image supplied by Ted Eytan.