SALT LAKE CITY — The Supreme Court this week urged compromise in the ongoing clash between religious freedom and LGBT rights, asking government officials, judges and activists to choose tolerance over a winner-take-all approach.
The court's Masterpiece Cakeshop ruling instructs Americans to recognize the humanity in competing beliefs, expressing support for religious Americans who cannot condone same-sex marriage because of their faith and for gay and lesbian Americans who continue to face heartbreaking discrimination.
"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," wrote Justice Anthony Kennedy in the majority opinion, which was joined by seven of the court's nine justices.
Observers on both sides of the issue joined the Supreme Court in condemning religious hostility. Even lawyers from the American Civil Liberties Union, the organization that represented the losing side in the case, supported the underlying message of the decision.
"What they did decide is that government bodies and agencies need to be very careful about respecting religion. We totally agree with that. They need to be neutral and dispassionate. They can't harbor any anti-religion bias," said James Esseks, director of the American Civil Liberties Union's LGBT and HIV Project.
But that doesn't mean the ruling's celebration of compromise will lead to meaningful change. LGBT rights advocates won't accept unequal treatment, Esseks said.
"When people ask, 'Hey, are you ready to compromise?,' what they're talking about is if we're ready to agree to religious exemptions in a civil rights law that only apply to discrimination against lesbian, gay, bisexual or transgender people," he said. "There's no reason to think civil rights rules in any state should be different for LGBT people than they are for discrimination based on sex, religion, disability or age."
It's safe to say that striking a balance in the future won't be easy. However, that shouldn't stop us from trying, said Robin Fretwell Wilson, the director of the family law and policy program at the University of Illinois College of Law.
"The questions left unanswered are really hard. What (the ruling) does seem to say is that we should have been respecting pluralism all along," she said.
The ruling
The Masterpiece Cakeshop case originated in July 2012. David Mullins and Charlie Craig visited the bakery with Craig's mother, Debbie Munn, to ask about potential wedding cake designs. The store's owner, Jack Phillips, told the group he would not provide a cake for a same-sex marriage celebration because of his Christian faith.
The gay couple complained to the Colorado Civil Rights Commission, arguing Phillips had violated the Colorado Anti-Discrimination Act. An administrative law judge, the commission and then the Colorado Court of Appeals ruled in their favor.
Phillips appealed to the Supreme Court, which agreed to consider his free speech and religious exercise claims.
However, this week's ruling did not address whether cake decoration is a form of speech or if nondiscrimination laws unfairly harm religious business owners' ability to live out their faith. Instead, it focused on the behavior of members of the Colorado Civil Rights Commission, deciding they had not respected the baker's beliefs.
"The government, if it is to respect the Constitution's guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices," Kennedy wrote.
Kristen Waggoner, who represented the baker, described the ruling as "a strong statement about religious hostility."
"The government cannot treat people of faith in a second-class way," she said.
The limited scope of the Supreme Court's ruling was surprising, because many observers thought the case could redefine how LGBT nondiscrimination protections are applied across the country.
"It didn't decide the question we all thought it was going to decide," said Jennifer Hawks, associate general counsel for the Baptist Joint Committee for Religious Liberty.
Justice Ruth Bader Ginsburg expressed frustration with the focus of the ruling in her dissent, which Justice Sonia Sotomayor joined. The majority opinion wrongly ignored the broader legal context surrounding the Masterpiece Cakeshop case, she said.
"I see no reason why the comments of one or two commissioners should be taken to overcome Phillips' refusal to sell a wedding cake to Craig and Mullins," Ginsburg wrote.
Although it addresses fewer questions than expected, the ruling is still valuable moving forward, said Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty. It shows there is no room for religious hostility in the government's actions.
"I do think it's wrong to say it's a narrow opinion," he said. "What I can say as a lawyer is that, long after everyone else has gotten bored by it, I'll be citing it in my cases."
He's already included a reference to Masterpiece Cakeshop in a brief for an ongoing case about whether Wayne State University can punish the InterVarsity Christian Fellowship for requiring their leaders to hold certain religious beliefs.
"The point is, this ruling could come up in any case where the free exercise clause is invoked," Rassbach said.
Finding balance
The Supreme Court's decision in Masterpiece Cakeshop backs up a commitment made in the majority opinion for Obergefell v. Hodges, which legalized same-sex marriage nationwide in June 2015. Kennedy presented that ruling as a way to protect and celebrate LGBT Americans, not to attack religious ones.
"Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here," he wrote.
With the Masterpiece Cakeshop ruling, the Supreme Court again makes clear that religious people like Phillips deserve protection even when their views are unpopular, Wilson said.
"There should be room for everybody to be true to who they are. You shouldn't have your views sullied just because they're disfavored," she said.
Only one-third of U.S. adults favor allowing small business owners in their state to refuse to provide products or services to gay or lesbian people when doing so would violate their religious beliefs, according to Public Religion Research Institute.
The Supreme Court's emphasis on respect doesn't mean that religion should always win when someone's beliefs cause pain for a gay or lesbian person.
Throughout the majority opinion in Masterpiece Cakeshop, Kennedy condemns harmful, anti-LGBT discrimination, Esseks said.
"The court went on at great lengths about how harmful discrimination is and how it would be a bad thing if broad exemptions were adopted that allowed many businesses in society to pick and choose customers and turn customers away," he said.
The ruling affirms two principles: that LGBT people deserve protection and that religious people who oppose same-sex marriage can't be assumed to be acting out of ill will for the LGBT community.
"The exercise of (LGBT Americans') freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression," Kennedy wrote.
What's next
The justices' call for balance is welcome, even if the Supreme Court ruling doesn't provide a step-by-step guide to crafting fair legislation, said Wilson, who has worked with several states, including Utah, on legislation aimed at protecting both religious and LGBT Americans.
"They don't tell (state legislatures) what kind of law to write, except to respect pluralism," she said. "That's very welcome to me. We're not going to be able to continue to have laws that protect just one side or the other."
However, as Esseks' comments illustrate, compromise between those who support the Christian baker and those who support the gay couple is still a long way off. Members of the two camps can't even agree on what counts as religious hostility in the legal system.
"The court clearly thought there was anti-religion animus present (in the Colorado commission.) I don't read (the commission's actions) that way," Esseks said. "I read their comments as saying that the use of religion to justify discrimination is a problem, but that is not a statement condemning anyone’s religious beliefs."
The Supreme Court likely won't be able to avoid ruling on religious service refusals in the future, experts said. Dozens of lawsuits related to this issue are moving through the lower courts, and one, Arlene's Flowers v. State of Washington, could be before the court as soon as next term.
"If there is any hint of hostility, we expect they'll be decided in the same way as (the Supreme Court) decided Jack's case," said Waggoner, senior vice president of the U.S. legal division for Alliance Defending Freedom.
In the Masterpiece Cakeshop ruling, the justices provided few clues as to how they would rule in a future case, Wilson said, calling it "a very difficult head-counting exercise."
The majority opinion noted that, in some circumstances, it would be appropriate to rule against a business owner like Phillips. But it didn't spell out what those circumstances are.
"The (Supreme) Court's precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws," Kennedy wrote.
Many observers expect the justices to avoid taking up a case related to Masterpiece Cakeshop until lawmakers, civil rights commissioners, judges and others across the country show they can get along.
"I think the Supreme Court is going to want to see how the lower courts handle their prescription to treat all persons with dignity and respect and see if there is still confusion or controversy," Hawks said. "I suspect there will be, but I would not expect them to take another (religious service refusal) case next term."
Wilson said she's optimistic about the potential impact of the Masterpiece Cakeshop case, adding that justices avoided ostracizing either religious conservatives or LGBT rights activists.
"I think this ruling leads you to a fuller world that should be willing to accommodate more voices," she said.