WASHINGTON -- Wedding cakes and same-sex marriages are back before the Supreme Court, and this time the justices are being asked to rule broadly that the First Amendment's protection of the "free exercise" of religion shields conservative Christians from state civil-rights laws.
An Oregon couple who were fined $135,000 for refusing to make a cake for the marriage of two women have asked the justices to take their case.
For nearly three decades, the court has followed a rule set in a 1990 decision written by the late Justice Antonin Scalia. Rejecting a claim filed by American Indians who ingested peyote as part of a religious ceremony, Scalia said the Constitution's guarantee of the free exercise of religion did not provide a shield against a "neutral and generally applicable law." In the peyote case, two men had been fired for using an illegal drug.
But the court's conservatives have recently shown a renewed interest in the free-exercise clause.
In the Oregon case, lawyers for Melissa and Aaron Klein said the couple were forced to shut down their Sweet Cakes store in the city of Gresham because of the conflict over their religious beliefs. They asked the court to overrule Scalia's decision and declare that the Constitution does provide a religious exemption to Oregon's civil-rights law.
Oregon requires public businesses to provide "full and equal" service to all customers without regard to race, sex, religion or sexual orientation.
In January, Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh suggested that they were ready to reconsider how far the free-exercise clause reached. They issued a partial dissent when the court turned down an appeal filed by a football coach who said he was fired for leading prayers on the field after games. The coach unsuccessfully claimed his firing violated his right to free speech. Alito suggested that he should have appealed based on his rights to freely exercise his religion.
Scalia's 1990 opinion "drastically cut back on the protection provided by the Free Exercise Clause," Alito said in Kennedy v. Bremerton.
This time, lawyers for the bakers in Klein v. Oregon Bureau of Labor have asked the court to "revisit" the rule on religious liberty.
Louise Melling, the ACLU's deputy legal director, said she doubts the court will take up this invitation. "This is about creating a constitutional right to discriminate. Ending discrimination is a compelling state interest, so I don't expect them to open this door," she said.
Last year, just before Justice Anthony Kennedy's retirement, the court ruled for a Christian baker in Colorado who refused to design a custom cake for the marriage of two men. But Kennedy ruled in a way that applied only to that specific case. Jack Phillips, the baker, had been subjected to "hostility" based on his religion, Kennedy wrote.
The court's opinion in that case, Masterpiece Cakeshop v. Colorado, did not decide the main issue -- whether bakers had a First Amendment free speech right not to participate in a same-sex marriage. Lawyers for Phillips had argued that designing a cake could be expressive, and the state could not force a baker to send a message in support of a same-sex marriage that violated his religious beliefs. The justices struggled with which jobs qualified as expressive, and they essentially decided not to decide.
But Kennedy was the last of the justices to have signed on to Scalia's 1990 opinion that had rejected the idea of legal exemptions based on religion. Then, the court's conservatives were united in their view that Seventh-day Adventists, the Amish, Jehovah's Witnesses and other members of religious minorities could not claim that their religious rights trumped generally applicable laws.
"We cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct" that conflicts with his religious beliefs, Scalia wrote. Doing so "would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind," he said in Employment Division of Oregon v. Smith.
A Section on 04/12/2019