In my first piece on Masterpiece Cakeshop v. Colorado Civil Rights Commission, I addressed the free speech issue posed in the case, which will be heard by the Supreme Court next week.
In this piece, I will address the freedom of religion issue.
The Masterpiece Cakeshop case involves the constitutionality, as applied to a specific factual situation, of the Colorado Antidiscrimination Act, which makes it unlawful for any business in Colorado to deny to any person, because of race, creed, color, sex, sexual orientation, or national origin, the full and equal enjoyment of the business’ goods, services, or facilities.
Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, refused to sell a wedding cake to Charlie Craig and David Mullins, a same-sex couple. Phillips maintains that it would violate his religious faith for him to participate in this manner in a same-sex wedding. He therefore insists that he has a constitutional right to discriminate against Craig and Mullins and that for the state to forbid him to do so would violate his right to the free exercise of religion, which is guaranteed by the First Amendment.
What are we to make of this claim?
The First Amendment prohibits government to make any law “prohibiting the free exercise” of religion. Clearly, this calls into question any law that expressly restricts the “free exercise” of any specific religion. For example, a law that forbids Jews to vote or forbids Muslims from attending public schools would unquestionably violate the Free Exercise Clause.
A more difficult question, as in the free speech context, is how to deal with laws that do not expressly restrict the religious freedom of members of any particular religion, but have only an incidental effect on the actions of members of certain religions.
The Supreme Court first addressed this issue in 1879 when it held that a law forbidding polygamy did not violate the First Amendment rights of Mormons. The Court explained that although the Free Exercise Clause forbids the government to prohibit religious beliefs, it did not deny government the authority “to reach actions” that are “in violation of social duties” or that are “subversive of good order.” Because the challenged law was not directed specifically against religion, it could constitutionally be applied to Mormons even though it had an incidental effect on the freedom of Mormons to act in accord with their religious beliefs.
Under such an approach, Jack Phillips would clearly lose. Just as their religious beliefs gave Mormons no First Amendment right to violate general laws against polygamy, it would give Phillips no First Amendment right to violate general laws against discrimination.
But the law became more complex some eighty-five years later when the Supreme Court decided Sherbert v. Verner in 1963. Mrs. Sherbert, a Seventh-Day Adventist, was fired by her employer because she would not work on Saturday, which was her church’s Sabbath. She was unable to find other employment in her town that would allow her to observe her Sabbath, so she applied for unemployment compensation, which was denied because of her refusal to accept a job that required her to work on Saturdays.
The Supreme Court held that the state’s denial of unemployment compensation to Mrs. Sherbert in these circumstances imposed an undue burden on her right to the free exercise of religion. This was so, the Court explained, because it was apparent in the circumstances that Mrs. Sherbert was being denied this benefit because of her desire to act in accord with her religious faith, and because the state had no “compelling interest” to justify treating her in this manner.
Under this approach, Jack Phillips might well have a First Amendment right not to provide a wedding cake for a same-sex couple. In 1972-73, I was a law clerk to Justice William J. Brennan, Jr., who had written the Supreme Court’s opinion in the Sherbert case. I asked Brennan why, in the liberal heyday of the Warren Court, the justices had reached this result.
He explained that the issue was not only one of religious freedom, but of religious equality. As a general rule, governments will not enact laws that interfere with the religiously-motivated actions of members of mainstream religions, and if they do adopt such laws they will invariably exempt members of mainstream religions to opt out of the laws. A simple example of this was the exception during Prohibition for the sacramental use of wine.
Thus, Brennan explained to me that when this situation arises it is almost invariably because the majority is either indifferent or hostile to the interests of religious minorities. In such circumstances, he added, it is especially important for the courts to ensure equal treatment in the realm of religious belief. I was convinced.
But the story doesn’t end there. Some thirty years later, in Employment Division v. Smith, which was decided in 1990, the Supreme Court considered the constitutionality of a state law that denied unemployment compensation to individuals who had been fired because they had violated the law, including for their use of peyote. Smith was a member of the Native American Church, which has as a part of its religious ritual the use of peyote (in much the same way that other religious use wine). He claimed that, under the principle established in Sherbert, the government could not constitutionally deny him unemployment compensation.
In an opinion authored by Justice Antonin Scalia, the Court, in a five-to-four decision, effectively overruled Sherbert and held that the Free Exercise Clause did not protect Smith’s right to use peyote. Justice Scalia held in no uncertain terms that “an individual’s religious beliefs” do not “excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”
The “government’s ability to enforce generally applicable prohibitions of socially harmful conduct,” he explained, “cannot depend on measuring the effects of a governmental action on a religious object.” Indeed, “to make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs,” and thus permitting him in effect “to become a law unto himself,” contradicts “both constitution tradition and common sense.”
Thus, although a strong case can be made for the ruling in Sherbert v. Verner, it is emphatically no longer the law, and under the precedent of Smith Jack Phillips has no credible claim under the Free Exercise Clause.
It will be interesting to see whether the current array of conservative Justices will apply the reasoning of Smith in a consistent and principled manner not only to a member of the Native American Church, but also to a Christian who claims that his faith gives him a constitutional right to violate laws forbidding discrimination against same-sex persons when he sells wedding cakes.