The Court announced on Monday that it will hear a suit brought by a baker who refused to bake a wedding cake for a couple because the couple is gay, giving the newly Gorsuched Court an opportunity to expand religious conservatives’ ability to violate civil rights laws.
The bakery at the heart of the dispute in Masterpiece Cakeshop v. Colorado Civil Rights Commission claims it has a constitutional right to defy Colorado’s anti-discrimination law because its owner, in the words of a lower court that heard this case, believes that “he would displease God by creating cakes for same-sex marriages.”
The bakery claims both that its owner’s religious belief gives it a special right to defy the law, and that requiring the bakery to bake a cake for a same-sex wedding amounts to a form of compelled speech prohibited by the First Amendment. Neither of these arguments holds water under longstanding legal doctrines.
The issue of whether religious liberty is a license to discriminate came before the Court in 1968, when the owner of a barbecue restaurant claimed that he should be exempt from the federal ban on whites-only lunch counters because such a ban, in his opinion, “contravenes the will of God.”
A unanimous Supreme Court labeled this argument “patently frivolous.”
Similarly, just last month the Supreme Court explained in Expressions Hair Design v. Schneiderman that a law does not violate the First Amendment because it has an effect on speech that is “only incidental to its primary effect on conduct.” That holding should be fatal to the bakery’s claim that it is immune from an anti-discrimination law because of the law’s (at most) incidental impact on speech.
Yet, while the bakery does not have much law on its side, the timing of the Court’s announcement suggests that its most conservative members are eager to make some very significant changes to the law now that they have a new ally on the bench.
Last year, during the period when the Court had only eight members, Justice Samuel Alito penned an angry dissent from the Court’s decision not to hear a case brought by a pharmacy which claimed a religious right to ignore a regulation requiring it to “deliver lawfully prescribed drugs or devices to patients.” In that dissent, Alito called for an expansive reading of religious objectors’ rights to defy the law.
Notably, Alito’s dissent was joined by just two other justices, Chief Justice John Roberts and Justice Clarence Thomas. It takes four votes for the Court to hear a case.
After receiving the bakery’s request to hear Masterpiece Cakeshop, the Court held the case over through five consecutive conferences of the justices without announcing whether or not they will hear the case. The most likely explanation for this behavior is that Roberts, Thomas, and Alito were biding their time until Neil Gorsuch would give them the fourth vote.
The most important question, however, is likely to be whether Justice Anthony Kennedy, a conservative who often votes with the liberals in gay rights cases, will go along with the bakery’s efforts to effectively legalize discrimination in states with pro-LGBT laws. It is likely that he will not. Kennedy provided the fifth vote against an anti-LGBT student group that sought a special right to discriminate in Christian Legal Society v. Martinez.
Martinez, however, was framed as a free speech claim, and Kennedy has not weighed in directly on whether a religious objection trumps the right to be free from discrimination. He did, however, vote with Alito in Burwell v. Hobby Lobby, the religion and birth control case, so Kennedy is at least open to the possibility that religious objectors can wield their objections to limit the rights of others.