The Supreme Court Considers Giving Conservative Christians a License to Discriminate…Again (Updated)

Evangelicals are back before the Roberts Court fighting for the ability to flout anti-discrimination laws—and any others they disagree with.

[Photo: A black, lesbian couple look at the camera disappointedly.]
Melissa and Aaron Klein owned a bakery outside of Portland, Oregon, called Sweet Cakes by Melissa. The Kleins refused to make a wedding cake for Rachel and Laurel Bowman-Cryer, a lesbian couple, because of their religious objection to same-sex marriage. Shutterstock

UPDATE, June 17, 9:33 a.m.: The Supreme Court on Monday granted cert in Klein, reversing judgment and sending the case back to the Oregon Court of Appeals for reconsideration. The Court of Appeals will have to determine whether Oregon enforced its anti-discrimination law too harshly.

It’s fair to say last summer’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission turned out to be kind of a dud, and certainly not the win conservative evangelicals had hoped it would be.

The case involved a challenge by Jack Phillips, a Colorado baker who had challenged the state’s public accommodation law on the grounds that complying with it by baking cakes for same-sex couples violated his religious beliefs. The U.S. Supreme Court effectively split the difference in the case, finding both that LGBTQ people have dignity interests entitled to constitutional protection and also that the state of Colorado had shown bias in enforcing its anti-discrimination statute against Phillips because of his evangelical faith.

The Masterpiece Cakeshop decision most certainly did not grant the plaintiffs the broad-scale license to discriminate against LGBTQ people that they had asked for during oral arguments. That’s why it took less than four months for evangelicals to return to the Court with another case involving a baker turning away a same-sex couple because of a religious objection to marriage equality. On Friday, the Supreme Court will consider whether to grant review. If it does, Klein v. Oregon Bureau of Labor and Industries could be one of the next term’s most important cases.

Klein has been billed as Masterpiece Cakeshop 2.0 because of the cases’ similarities. Melissa and Aaron Klein owned a bakery outside of Portland, Oregon, called Sweet Cakes by Melissa. The Kleins refused to make a wedding cake for Rachel and Laurel Bowman-Cryer, a lesbian couple, because of their religious objection to same-sex marriage. The Bowman-Cryers filed a complaint with the state administrative agency, which determined that the Kleins had violated Oregon’s prohibition on sexual orientation discrimination; the agency awarded the Bowman-Cryers $135,000. The Kleins appealed, arguing that the state’s anti-discrimination law violates the First Amendment because it compels individuals like them to “express a message—a celebration of same-sex marriage—with which they disagree.” The state appeals court disagreed, finding Oregon’s law did not impermissibly burden the Kleins’ religious beliefs; nor, it found, did the agency improperly target the Kleins for enforcement because of those beliefs. The Kleins appealed that ruling to the Roberts Court.

In reality, Klein poses a much bigger threat to civil rights laws than even Masterpiece Cakeshop did. That’s because the Kleins are not just asking the Court to answer the question of whether a discrete class of people, like bakers, can flout anti-discrimination laws and refuse to bake a cake for a lesbian couple because to do so would be an artistic expression of morals contrary to their sincerely held religious beliefs. They are asking the Court to overturn nearly 30 years of precedent to allow any religious objector to discriminate against LGTBQ people writ large.

The Kleins have asked the Roberts Court to overturn Employment Division v. Smith, a 1990 decision that held “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduction that his religion prescribes (or proscribes).” In other words, a person’s right to exercise their religion does not excuse them from being held accountable for laws that apply to everyone equally.

Smith involved two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. They applied for unemployment benefits, but the state of Oregon rejected their claims on the ground that consumption of peyote was a crime. The Oregon Supreme Court agreed that the denial of benefits violated the Free Exercise Clause. But the U.S. Supreme Court, with Justice Antonin Scalia writing for the majority, reversed the Oregon Supreme Court. It held that if the Oregon Supreme Court decision were allowed to stand, it would allow a person to object on religious grounds to the enforcement of a generally applicable law—exactly like the Kleins are trying to do here.

According to Scalia in Smith, these kinds of claims “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” The Court later followed with another decision reaffirming the principles of Smith and held that, under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.”

Smith was, to put it mildly, an unpopular decision. Three years later, Congress responded by enacting the Religious Freedom Restoration Act (RFRA), which was designed to return religious exercise law to its pre-Smith state. That didn’t quite work out. In 1997, the Supreme Court determined that RFRA only applied to the federal government. But then in 2014, a more conservative Roberts Court gave conservative Christians new hope when in Burwell v. Hobby Lobby it held that some privately held businesses could raise religious objections to the birth control benefit in the Affordable Care Act. For the first time, the Court had recognized the religious objections of third parties over the rights of others under RFRA.

It was just the intellectual and jurisprudential opening conservative Christians had been waiting for. Soon, litigation mills like the Alliance Defending Freedom (ADF) began filing lawsuits in federal and state courts, expanding on the logic of Hobby Lobby and arguing for a First Amendment right to discriminate.

The courts have largely rejected those claims, and with good reason. If civil society is going to stand, religious faith cannot be both a shield against complying with the law and a sword with which to dismantle it. Allowing religious objections to generally applicable laws, like the minimum wage or public accommodations statutes, would effectively grant religious people veto power over the full civic engagement of people with whom they disagree. And we know from history that those objections will not end with fights over wedding cakes for LGBTQ people. Religious objectors have tried, and failed, to use their faith to avoid Social Security requirements and to justify campus policies against interracial dating, among others.

Of course, those cases pre-date Hobby Lobby. They also pre-date the elevation of Justice Brett Kavanaugh to the Court to replace Justice Anthony Kennedy, the only conservative vote for LGBTQ rights on the Court. Which means that what we thought was settled First Amendment law might be back up for grabs again.

There are some signs the Court—or at least Chief Justice John Roberts—may be reluctant to wade back into the religious objection waters so soon after Masterpiece Cakeshop and the very public, partisan fight over Justice Kennedy’s replacement. In March, the justices declined to hear a similar case from Hawaii involving a bed-and-breakfast owner who, a lower court found, violated a state anti-discrimination law by turning away a lesbian couple because of her religious beliefs. The Court did not give a reason for turning away the Hawaii case, though that matter is still in more preliminary stages than Klein and thus likely not as good a candidate for Supreme Court review.

The Court could decide as early as Monday if it will hear Klein. Though if history is any indication, it will think about taking the case several more times before acting. The Roberts Court conferenced on Masterpiece Cakeshop 15 times before eventually granting review.