Religious liberty advocates celebrate Supreme Court action
Posted June 30
The Supreme Court's busy Monday brought a legal victory and the promise of a long-awaited day in court for religious-freedom advocates. Justices ruled 7-2 in favor of a church in this term's most high-profile religious exercise case and agreed to review another big First Amendment issue in the fall.
Before issuing its final decisions of the term, the court announced it will hear Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission when its new term begins in October. And while the justices won't rule until sometime next year, the announcement may have been the most important development for stakeholders in disputes pitting religious freedom against LGBT rights.
By taking on the case, the Supreme Court dives back into the same-sex marriage debate, considering whether small-business owners, and particularly those that provide creative services for wedding celebrations, should be able to refuse to serve the LGBT community for religious reasons.
"The Colorado case could settle challenges from at least a half-dozen other artists in the wedding industry who are challenging laws in other states requiring them to produce work for same-sex ceremonies," the Associated Press reported. Twenty-two states have anti-discrimination protections on the books blocking small-business owners from refusing service to the LGBT community.
The court's ruling in the other religious-freedom case, Trinity Lutheran Church of Columbia, Inc. v. Comer, was much narrower than anticipated by some legal observers.
"It looks an awful lot like the case is limited to its facts," said Robert Tuttle, a law and religious studies professor at George Washington University.
The majority opinion, penned by Chief Justice John Roberts, had little to say about government restrictions preventing state money from funding religious activities. Instead, it focused on the notion that Trinity Lutheran's preschool should have had access to a state grant providing a safer surface for a preschool playground, since the tire shreds wouldn't have been used for a religious purpose.
Even two of the concurring justices in the case wanted the ruling to go further in protecting religious institutions from government discrimination.
Two other rulings issued Monday didn't address religious freedom directly but dealt with issues of interest to many faith communities: upholding a limited version of the Trump administration's ban on travel from six mostly Muslim countries and reaffirming a 2015 ruling that states must treat same-sex couples the same as others in issuing birth certificates.
The Masterpiece Cakeshop case pits a baker represented by the Alliance Defending Freedom, a conservative law firm, against two married gay men represented by the American Civil Liberties Union.
In 2012, David Mullins and Charlie Craig met with baker Jake Phillips about a wedding cake for their reception in Denver, Colorado. After realizing that they were the couple getting married, Phillips said he wouldn't be comfortable participating in the event because of his religious beliefs.
Mullins and Craig posted about the experience on social media, and their story went viral. The ACLU partnered with the couple in a civil rights complaint.
Phillips and his legal team argue that his First Amendment rights of free speech and free exercise of religion should allow him to refuse to create art — in this case, a cake — that expresses an idea he objects to. They say small-business owners with religious convictions should be exempt from some anti-discrimination laws.
Mullins, Craig and the ACLU argue that discrimination is discrimination, no matter its motivation. Citing earlier cases in which business owners cited their religious beliefs to justify not serving black Americans or paying women the same as men, they urge the Supreme Court to protect the LGBT community even at the expense of more conservative, religious Americans.
"The basic question is whether David and Charlie and others throughout the country will be protected from discrimination," said Louise Melling, ACLU's deputy legal director, on a Monday press call.
So far, the ACLU's argument has prevailed. "Craig and Mullins filed a civil rights complaint and won, first before an administrative court judge, then before the state Civil Rights Commission, and finally before the Colorado Court of Appeals," USA Today reported.
Phillips and the Alliance Defending Freedom appealed to the Supreme Court in July 2016, and the long delay until today's announcement led many to speculate that the justices would pass on the case.
"Today was a good day for religious freedom" at the Supreme Court, tweeted the Alliance Defending Freedom.
The Trinity Lutheran case centered on a religiously affiliated preschool's request for state-funded tire shreds, which soften a playground's surface and prevent injuries. The preschool's application ranked 5th out of 44 applicants to a grant program, but Missouri state law blocked the faith group from accessing public money.
Although the justices agreed that states are right to worry about sending government funds to religious organizations, those in the majority said shredded tires are a public health benefit and playground resurfacing is distinct from religious activities.
"The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution … and cannot stand," Roberts wrote.
He was joined in full by three justices and in part by two others. Justice Stephen Breyer wrote a concurring opinion.
"What the court did here is classify (Missouri's scrap tire grant) as a general program that's available to anybody and from which the church was singled out simply because it's a church," said Frederick Gedicks, a law professor at Brigham Young University. "The court says that violates the free exercise clause" of the Constitution.
The Trinity Lutheran case was closely watched by people on both sides of contemporary church-state separation debates. They speculated the ruling could be a major turning point in efforts to expand school voucher programs.
In reality, the majority opinion was relatively narrow and upheld the status quo, drawing on previous money-related rulings to explain that states can provide public funding to religious groups as long as it's not going to be used for religious purposes, Gedicks said.
The court says “states have a compelling reason to ensure they don’t fund indisputably religious activities like ministerial training, but they don’t have a compelling reason to refuse to buy things like ground-up tires,” he said.
A footnote in the majority opinion explained that the ruling does not "address the religious uses of funding or other forms of discrimination."
This clarification was absent from some of the more liberal reactions to the ruling. For example, the Center for Inquiry, a pro-secular nonprofit, described it as a blow to legal experts' long-standing interpretation of the Constitution.
“The Supreme Court has detonated a massive breach in the wall of separation between church and state,” said Nicholas Little, the center’s legal director. “In fact, the justices have laid the groundwork for additional confusion and conflict.”
Similarly, the Baptist Joint Committee for Religious Liberty, a religious group that supports strict church-state separation and filed a brief in support of the state of Missouri, said the ruling further complicates religious-freedom law.
"While claiming to stand up for churches, the court ignores their distinct nature as centers of religious exercise," it said in a statement. "The decision does not create a free-exercise right to government funding of religion, but it unnecessarily blurs the line that ensures religion flourishes on its own."
Alternatively, individuals and groups who work to expand the rights of religious organizations saw the ruling as a meaningful affirmation of religious liberty.
"The Supreme Court's decision today affirms that common-sense principle and the larger truth that government isn't being neutral when it treats religious organizations worse than everyone else," said David Cortman, senior counsel for Alliance Defending Freedom, the law firm that represented Trinity Lutheran Church.
While many of the justices sided with Trinity Lutheran, the concurring and dissenting opinions illustrated varied viewpoints on how best to balance the Constitution’s free-exercise and establishment clauses.
Dissenting justices Sonia Sotomayor and Ruth Bader Ginsburg said Missouri officials were right to create a clear barrier between religious groups and state grant money. They said the majority opinion will lead to more confusion about the appropriate way to separate church and state.
"Today's decision discounts centuries of history and jeopardizes the government's ability to remain secular," Sotomayor wrote.
Although they largely concurred with Roberts, justices Neil Gorsuch and Clarence Thomas argued that the majority opinion could have gone further to ensure that faith groups won't be punished for living their religious beliefs. They took issue with the footnote in the majority opinion clarifying that this ruling won't set a precedent for future religious-discrimination cases.
"I worry that some might mistakenly read it to suggest that only 'playground resurfacing' cases, or only those with some association with children's safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the court's opinion," Gorsuch wrote. "The general principles here do not permit discrimination against religious exercise — whether on the playground or anywhere else."
Through his writing in this case and others this term, Gorsuch appeared to live up to his conservative reputation, signaling he could play a crucial role in Masterpiece Cakeshop and other future religious-freedom cases.
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