Great America

It’s Time for the Supreme Court to Answer the Central Question in ‘Masterpiece’

Does the government’s interest in eliminating discrimination against certain minorities override an individual’s First Amendment rights?

When the Supreme Court decided the first Masterpiece Cakeshop case in favor of Jack Phillips, the owner of a Colorado bakery who declined to bake a cake for a same-sex wedding reception, the court’s ruling was quite narrow. The decision focused primarily on the actions of the Colorado Civil Rights Commission, which were deemed hostile to Phillips’ religious beliefs.

Unfortunately, the court sidestepped the more pressing question of whether the government can compel a citizen to create a message that violates his deeply held religious beliefs.

The Supreme Court’s failure to answer this question has opened the door for other such cases, including the recent case involving Melissa and Aaron Klein.

The former owners of Sweet Cakes by Melissa refused a woman’s request to make a wedding cake for her same-sex wedding. After the woman left the bakery, her mother returned and a discussion of the morality of same-sex marriage took place, at which time Aaron Klein quoted a passage from the Bible (to support his religious beliefs). The mother subsequently told her daughter what had transpired, although she misquoted Klein. The daughter allegedly was deeply offended.

Under Oregon law, it is illegal for businesses to refuse service based on a customer’s sexual orientation, as well as race, gender, and other characteristics. The Kleins, who are Christians, maintained that they did not discriminate against the couple but declined to make the cake based on their deeply held religious beliefs. Their conduct, the Kleins contend, is protected under the First Amendment’s free speech and free exercise of religion clauses.

The Oregon Bureau of Labor and Industries disagreed. In 2015, the bureau found the Kleins had violated the state’s public accommodations law. The Kleins were also ordered to pay $135,000 for physical, emotional, and mental damages, which put them out of business. The Oregon Court of Appeals upheld the bureau’s decision in 2016.

In June 2019, the Supreme Court threw out the Oregon court’s original decision and ordered the court to reconsider its ruling in light of Masterpiece Cakeshop. Specifically, the justices instructed the Oregon court to consider whether the Oregon bureau acted with unconstitutional hostility towards religion in its decision making. There was some indication this might be the case based on certain comments the bureau’s commissioner allegedly made before he heard any of the evidence.

While the Kleins await the Supreme Court’s ruling, their case is yet another example of the intersection and potential conflict between certain types of conduct, discrimination laws, and people’s First Amendment rights.

The Supreme Court’s decision in the original Masterpiece case was a good start, but the court’s narrow holding left the door open for further litigation. For example, Jack Phillips has been forced to endure additional lawsuits alleging unlawful discrimination.

Perhaps it is time for the Supreme Court to tackle the broader and more pressing question that it did not address in the original Masterpiece case: whether the government’s interest in eliminating discrimination against certain minorities overrides an individual’s religious liberties.

The answer won’t be reached easily, given the many competing interests and rights at stake. Justice Anthony Kennedy alluded to this briefly in his majority opinion in Masterpiece. He wrote:

One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defining whether a baker’s creation can be protected, these details might make a difference.

The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless.

Given the emergence of similar cases and their potential impact on the parties involved—the Kleins lost their business, after all—one hopes the Supreme Court will provide a definitive answer soon.