Two of the most precious rights of Americans possess the right to express themselves freely and the right to practice their religion as they see fit. Both are enshrined in the First Amendment.
But these rights are not absolute, and sometimes can conflict with a duty toward others. The Supreme Court is now considering taking a case that may test these limits, Masterpiece Cakeshop us. Colorado Civil Rights Commission.
The case stems from a July 2012 incident at the Masterpiece Cakeshop. Charlie Craig and David Mullins asked Jack Phillips, who owned the cake shop, a custom wedding cake in honor of the marriage between the same sex. Phillips denied that he did not want to promote same-sex marriage because of his religious beliefs.
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Craig and Mullins filed a complaint with the Colorado Civil Rights Commission. The Commission has decided against Phillips, which he had discrimination on the basis of sexual orientation.
The Commission ordered the cake shop to change its policies, providing training in the area of discrimination, and provide quarterly reports for two years regarding the steps taken to comply with the order.
The Colorado Court of Appeals affirmed the decision and the Colorado Supreme court refused to hear the case. Last year, Phillips petitioned the Supreme court to take the case, claiming the Colorado ruling is in conflict with the free speech and free exercise clauses of the First Amendment.
The court may make its decision each day as to whether or not to hear the case.
John Eastman, a professor and former dean at Chapman University School of Law, is of the opinion that the free speech argument is strong, because Phillips’ work is “expressive conduct.”
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“Whether you are a photographer, or a cake maker, or a t-shirt designer,” he notes, “they are actively engaged in expressive activity,” which is covered by the First Amendment. In fact, he said, in the case of “t-shirts, or the language on a cake, it is a speech.”
But Erwin Chemerinsky, dean of the University of California, Irvine School of Law, counters that the expressive activity comes from the customers.
“If I have the words on my cake, I am involved in the expression,” he said. “The bakery is just my words on a cake.”
Chemerinsky said that “even if this about speech,” that does not mean that the government can’t mediate. And, in this case, “the interest in preventing discrimination outweighs” other interests.
For example, he said, the baker loses in court as he is against mixed marriages, and not to bake a cake for an interracial couple.
Eastman suggests that “this is a shift from the facts’ and imagine a ” white racist who wants to be an African American baker to bake a cake celebrating the Ku Klux Klan.” If the court tried to claim that making the cake “that does not imply free speech rights, people would cry.” Phillips, Eastman said, was willing to serve homosexuals in his shop, he just didn’t want to be forced to their beliefs.
As for the question of free exercise of religion argument, Chemerinsky said that under the Supreme court decision of Employment Division v. Smith (1990), state laws such as Colorado’s anti-discrimination laws—can restrict what people claim is their religious right as long as the statutes are “neutral laws of general applicability” and not focused on religion.
Eastman agrees that the Smith ruling makes the free exercise argument more difficult to sell, although he wondered, with Justice Scalia—who authored the opinion, and is no longer on the Court — if it is not the time to revisit this precedent.
The general feeling is that the court is not up to the Masterpiece Cakeshop. The judges have had this case for compensation of an amazing 16 times without it on the docket. Some experts believe that the judges wait before they drop the case – for one (or more) of the judges to the writing of an objection to the denial of the petition.
There is a good reason for the Court would wish to have, according to Professor Chemerinsky. They are worried about “opening the door for people to discriminate in the name of religion.”
But if the case is treated, experts said, it will probably be a blockbuster. Eastman is of the opinion that it could be bigger than the Hobby Lobby opinion a few years back, allowing a company to be exempted from a contraceptive mandate because of religious objections. In that case, was limited in size, but if the judge ruled in favor of Phillips, it could mean that there is a constitutional right that would trump many of the articles of association in the entire country.