COVER STORY By: Mohamed Akram Faizer Professor of Law, LMU Duncan School of Law
Having our Cake and Eating it Too: Can Religious Freedom and Non-Discrimination Co-Exist? Justice Kennedy’s majority decision held in Phillips’ favor on First Amendment grounds, arguing that the Commission’s treatment of the case demonstrated a clear and impermissible hostility toward religion. The Court noted that the hearing transcript revealed that commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, thereby implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state”; another posited that “if a businessman wants to do business in the state and he’s got an issue with the – the law’s impacting his personal belief system, he needs to look at being able to compromise.”11 The Court allowed that these statements are susceptible to different interpretations, but maintained they likely demonstrate a lack of due consideration for Phillips’ religious freedom.12 At a July 25, 2014 open hearing, one commissioner stated that freedom of religion has been used to justify historical injustices such as slavery and the Holocaust and “to me it is one of the most despicable pieces of rhetoric that people can use to-to use their religion to hurt others.”13 Because the record showed no objection to these comments from other commissioners and the later state court ruling reviewing the Commission’s decision failed to either mention the comments, much less express concern with their content, the Court concluded that it “cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.” This, according to the Court, was completely inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law.14 Kennedy’s decision concluded that “cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”15
1 138 S. Ct. 1719 (2018) 2 The Supreme Court required nationwide legalization and recognition of same-sex marriage in Obergefell v. Hodges, 576 U.S. __ (2015). 3 138 S. Ct. at 1724. 4 138 S. Ct. at 1724. 5 Indeed, the Tennessee Human Rights Commission, five members of whom are appointed by the Governor, two by the House Speaker and two by the Senate Speaker, is only entitled to protect individuals in places of public accommodation on the grounds of race, sex, color, religion and national origin. See T. C. A. 4-21-501 et seq. 6 Interestingly, the CADA disallowed discrimination against LGBTQ individuals when Colorado still disallowed same-sex marriage. 7 138 S. Ct. at 1726. See also Employment Division v. Smith, 494 U.S.872 (1990). 8 138 S. Ct. at 1726. 9 138 S. Ct. at 1726. 10 138 S. Ct. at 1726. 11 138 S. Ct. at 1729 12 138 S. Ct. at 1729 13 138 S. Ct. at 1729. 14 138 S. Ct. at 1729. 15 138 S. Ct. at 1732. 16 See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014) (concluding that closely held, for-profit corporations can have religious freedom rights under the Religious Freedom Restoration Act to preclude compliance with the Patient Protection and Affordable Care Act’s contraception mandate); see also Citizens United v. FEC, 558 U.S. 310 (2010)(concluding that corporations have speech rights protected by the First Amendment to preclude independent spending and advertising); see also Janus v. AFSCME, 585 U.S. ___ (2018) (concluding the First Amendment’s speech clause precludes unions from collecting dues from non-union members for collective bargaining purposes); and see also National Institute of Family and Life Advocates v. Becerra, 585 U.S. __ (2018) (concluding that California’s FACT Act, which mandates that crisis pregnancy centers advise about abortion alternatives to continued pregnancy, violates the centers’ speech rights).
The Dubious Future of Anti-Discrimination Jurisprudence The narrowness of Kennedy’s decision fails to resolve the disputed balance between civil rights statutes that purport to assure individuals of non-discriminatory treatment and First Amendment rights to associational and religious freedom. To paraphrase Yogi Berra, making predictions is precarious, especially about the future, but there is reason for civil rights and LGBTQ advocates to be concerned. First, Kennedy’s likely replacement, Judge Kavanaugh, is a traditional economic and social conservative who will likely align himself with the Court’s other conservatives, whose recent jurisprudence demonstrates an inclination to, as Justice Kagan has written, “weaponize” the First Amendment to invalidate social welfare, campaign finance, labor and health care legislation.16 Although limited, the decision in Masterpiece Cakeshop, in conjunction with changes in court composition and the dynamics of its recent jurisprudence, portends a bleak future for anti-discrimination laws nationwide. In 2010, President Obama, seeking to rebut allegations that his signature piece of legislation was illegitimate, advised his political opponents that “elections have consequences.” The Court’s composition and the current President’s role in nominating justices is a continuous reminder of this fact. August 2018
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