Should a baker who declines on religious grounds to bake a cake to celebrate a same-sex wedding be punished for violating a state anti-discrimination law, or is his refusal an exercise of a fundamental right not to say something he doesn’t believe despite state pressure to conform?
This is the central question in an important test case concerning same-sex marriage, which the Supreme Court will consider in the new term that begins Oct. 2. The case involves a Colorado baker. The justices also have been asked to consider a similar case involving a florist in Washington state.
The extent of the right to dissent from same-sex marriage is far from being the only high-visibility issue facing the Supreme Court this term. Early on, for instance, it will consider cases focused on partisan redistricting — gerrymandering, in popular parlance — and on President Donald Trump’s effort to suspend immigration from several countries with majority-Muslim populations.
On the docket
As of last June, when its 2016 term closed, the court had accepted 32 new cases for consideration during the term ahead. It is expected to announce acceptance of an unknown number of additional cases soon after the new term starts and to continue adding cases as the term progresses.
The justices will hear oral arguments in the gerrymandering case (Gill v. Whitford) on Oct. 3. In it, Wisconsin is appealing a ruling by a three-judge federal district court overturning a redistricting plan put in place by a Republican-controlled state legislature after the 2010 census.
Redrawing congressional districts in such a way as to give an advantage to one political party or the other is an issue in many other states besides Wisconsin. But the Supreme Court generally has stayed out of such disputes on the grounds that the issue is essentially a political one, and it has asked the lawyers arguing the Wisconsin case to address the basic question of whether such matters are up to courts to decide.
Oral argument in the travel ban case (Trump v. International Refugee Assistance Project) will take place Oct. 10. At issue is Trump’s March 6 executive order putting a freeze on travel to the United States by people coming from Iran, Libya, Sudan, Somalia, Syria and Yemen.
The Supreme Court last June gave general approval to the president’s order, which replaced an earlier, tougher version but exempted people who have a significant pre-existing relationship with an individual or institution in this country. Generally speaking, that would include close family members and students.
Belief and expression
No date yet has been set for the same-sex marriage case (Masterpiece Cakeshop v. Colorado Civil Rights Commission) to be argued, but it is possible that it will be delayed until after the justices have decided whether they will or won’t also hear the case of the Washington florist (Arlene’s Flowers v. Washington).
Masterpiece Cakeshop involves a Lakewood, Colorado, baker named Jack Phillips who refused in 2012 to bake a cake for the wedding reception of two men named David Mullins and Charlie Craig, who were planning to be married in Massachusetts, which then was one of the few states that recognized same-sex marriage.
Mullins and Craig complained to the Colorado Civil Rights Commission, which found Phillips guilty of sexual-orientation discrimination under the state’s anti-discrimination law. The Colorado Court of Appeals ruled against Phillips in 2015 — the same year the Supreme Court legalized same-sex marriage nationwide — and the state Supreme Court turned down his appeal in April 2016.
In their petition to the U.S. Supreme Court on Phillips’ behalf, lawyers with the public-interest law firm called the Alliance Defending Freedom say the baker is a “cake artist” for whom baking custom cakes is a form of expression. In addition, they said, although his religious beliefs rule out helping celebrate same-sex marriage by providing a wedding cake, Phillips does not object to creating other bakery products for gay and lesbian clients.
Quoting from previous court rulings, the petition argues that the First Amendment to the Constitution “prohibits the government from telling private citizens ‘what they must say.’ ... But the [Civil Rights] Commission ruled that is exactly what the law requires, and the Colorado Court of Appeals upheld that mandate on appeal. In doing so, that court approved nothing less than the ‘outright compulsion of speech.’”
Pointing out that state authorities in Colorado have recognized the right of three other “secular” bakers to refuse to bake cakes critical of same-sex marriage, the petition adds:
“This [Supreme] Court’s review is needed to alleviate the stark choice Colorado offers to those who, like Phillips, earn a living through artistic means: Either use your talents to create expression that conflicts with your religious beliefs about marriage or suffer punishment under Colorado’s public accommodation law.”
The Justice Department has submitted an amicus brief to the court supporting Phillips.
Testing the language
In his opinion two years ago for the five-member Supreme Court majority that mandated same-sex marriage nationwide in the case Obergefell v. Hodges, Justice Anthony Kennedy said that people who “adhere to religious doctrines” are entitled to “continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”
But whether the court is prepared to say this toleration extends to people engaged in providing goods and services is not so clear. As the number of such cases has risen since the Supreme Court decision, so have efforts to stamp out this kind of dissent, making the issue a central part of the ongoing conflict often described as a culture war.
In the estimate of some, this is a reflection of the intolerant nature of contemporary liberal democracy. In a much-discussed book “The Demon in Democracy” (Encounter, $23.99), Polish philosophy professor Ryszard Legutko goes so far as to argue that in this respect liberal democracy and communism are at bottom much the same in their intolerance for significant dissent.
Legutko is a philosophy professor in Krakow who has held posts in the post-communist Polish government and is a member of the European parliament. Although “the very idea of liberal democracy should presuppose freedom of action,” he writes, its underlying ideological thrust moves proponents to press for “the withdrawal of the guarantee of freedom from those whose actions and interests are said to be hostile to what the liberal democrats conceive as the cause of freedom.”
Like religiously motivated bakers who don’t choose to bake cakes to celebrate same-sex marriages? The Supreme Court will answer that one in the months ahead.
Russell Shaw is an OSV Newsweekly contributing editor.