Supreme Court Issues Opinion in Masterpiece Cakeshop First Amendment Case

This morning, the Supreme Court issued its opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  Based on his religious beliefs, Colorado baker Jack Phillips refused to create a cake for a same-sex wedding in 2012, and the Colorado Civil Rights Commission, a state Administrative Law Judge, and the Colorado Court of Appeals all found that Phillips had violated the Colorado Anti-Discrimination Act.

Today, the Supreme Court, in a majority opinion by Justice Kennedy, held 7-2 that the Colorado Civil Rights Commission acted with "clear and impermissible hostility" toward Phillips' sincerely held religious beliefs (partially from the syllabus; internal citations omitted):

As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.  

Another indication of hostility is the different treatment of Phillips’ case and the cases of other bakers with objections to anti-gay messages who prevailed before the Commission. The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips’ willingness to do the same irrelevant. The State Court of Appeals’ brief discussion of this disparity of treatment does not answer Phillips’ concern that the State’s practice was to disfavor the religious basis of his objection. 

For these reasons, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. The government, consistent with 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. . . . [T]he record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of his religious beliefs. . . . 

The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated. 

Justice Thomas, joined by Justice Gorsuch, wrote a concurrence because the Colorado Court of Appeals' "reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak."  Justice Gorsuch, joined by Justice Alito, wrote separately to respond to Justices Ginsburg and Kagan's attempts to defend the Commission's actions (internal citations omitted): "In the face of so much evidence suggesting hostility toward Mr. Phillips’s sincerely held religious beliefs, two of our colleagues have written separately to suggest that the Commission acted neutrally toward his faith when it treated him differently from the other bakers—or that it could have easily done so consistent with the First Amendment. But, respectfully, I do not see how we might rescue the Commission from its error."

Whatever one's view of the background social policy debate over same-sex marriage, what happened to Jack Phillips should strike fear into the heart of every liberty-loving person who respects the rule of law.  An unelected government commission pre-judged his case according to the commissioners' own beliefs without regard for his constitutional rights.  (As a side note, this "bipartisan" commission is currently composed of four Democrats, one Republican, and two independents.  Given their outright "hostility" to Mr. Phillips, one can only imagine how fairly they evaluate Republicans that come before them.)  The Supreme Court righted this wrong today.

HHS Established Conscience and Religious Freedom Division

Under President Trump, the Department of Health and Human Services (HHS) has taken steps to respect Americans' rights of religious liberty and conscience, which are protected under the First Amendment.  This is refreshing after, under President Obama, HHS was focused on advancing and defending regulations under Obamacare that infringed on Americans' important rights, including litigating several losing cases all the way to the Supreme Court.

Yesterday, HHS announced the formation of the Conscience and Religious Freedom Division in the HHS Office for Civil Rights:

The Conscience and Religious Freedom Division has been established to restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.  OCR is the law enforcement agency within HHS that enforces federal laws protecting civil rights and conscience in health and human services, and the security and privacy of people’s health information.  The creation of the new division will provide HHS with the focus it needs to more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom, the first freedom protected in the Bill of Rights. . . .

OCR Director [Roger] Severino said, “Laws protecting religious freedom and conscience rights are just empty words on paper if they aren’t enforced. No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions, and the new division will help guarantee that victims of unlawful discrimination find justice. For too long, governments big and small have treated conscience claims with hostility instead of protection, but change is coming and it begins here and now.” 

Acting HHS Secretary [Eric] Hargan said, “President Trump promised the American people that his administration would vigorously uphold the rights of conscience and religious freedom.  That promise is being kept today. The Founding Fathers knew that a nation that respects conscience rights is more diverse and more free, and OCR’s new division will help make that vision a reality.”

This announcement, coming directly before today's March for Life in Washington, is just the start of fulfilling the promises in President Trump's religious liberty Executive Order from last May.  

Predictably, the left is outraged, and the ACLU in particular has threatened litigation.  But also predictably, the ACLU's understanding of the Constitution is wrong, as attorney Margot Cleveland writes in National Review:

Underlying [ACLU's lawsuits against religious accommodations] is a common thread — and one that threatens the future of religious liberty in this country. . . . The ACLU is wrong: While the Supreme Court has long noted that accommodations can go too far, transforming the government from a protector of religious liberty to an enforcer of religious dogma, the sweeping assertion that accommodations that burden third parties violate the establishment clause simply does not hold true. . . .

Since the government created the onus on religion in the first place, eliminating that burden does not favor religion but rather represents, in the words of the Supreme Court, “benevolent neutrality” — something entirely consistent with the establishment clause. . . .

Throughout its history, the United States has long offered a variety of accommodations to protect citizens’ rights of conscience from the burdens imposed by otherwise just laws. Respect for the diverse tapestry of religious and non-religious beliefs and practices our country so richly enjoys is best achieved when the legislative branch crafts a compromise to protect both sincerely held religious beliefs and the compelling governmental interests at stake — something not possible if the establishment clause is stretched as the ACLU and others suggest.

We thank the Trump Administration for taking Americans' rights of religious liberty seriously and restoring the rule of law and respect for the Constitution in this important area.

Senator Hatch on Religious Liberty

Senator Orrin Hatch of Utah recently published a post on the Harvard Law Review Blog on the status of religious liberty in America. Senator Hatch writes about how the concept of religious liberty used to be a noncontroversial issue that garnered bipartisan support. However, those days are gone and the result is raising issues that go against the principles espoused by our Founding Fathers:

Religious liberty was, in several critical ways, the first freedom of our system. Its explicit protection is the first injunction commanded by the First Amendment. Ingrained deeply in our culture and in our institutions, its expression has proven central to the national character. Our Constitution allows no establishment of religion, and permits no undue restraint upon its exercise, such that our citizens may make their own determinations on matters of conscience.

This basic principle used to be widely shared. It used to be one of the few matters that spanned the divide . . . And yet today, where do we find ourselves? In a recent judicial confirmation hearing, a nominee was asked, explicitly, “do you consider yourself an orthodox Catholic?” That same nominee was told that, upon review of her record, “the conclusion one draws is that the dogma lives loudly within you.” Statements like that can be taken only as the imposition of some kind of religious test for holding office. Nothing could be more repugnant to our values of religious freedom and liberty.

Senator Hatch noted this shift is a fairly recent one, noting that the Religious Freedom Restoration Act (RFRA) garnered near-unanimous support in both chambers of Congress.  He continued by referencing recent major court decisions and growing pressures being added to stresses put upon our right to religious liberty:

In cases like Trinity Lutheran and controversies from Hobby Lobby to the Zubik v. Burwell [case], there is a new pressure on those living and espousing their faith. And yet, unlike in the past, there is no longer a chorus of voices — from both sides of the aisle — standing up for religious liberty. There is no longer a broad, bipartisan agreement that religious rights are not to be tampered with, demeaned, overlooked, or casually brushed aside. More and more, religious liberty is treated as an afterthought to those making policy and as an inconvenience to those carrying it out. More and more, it proves a quick rhetorical box to check before moving on to matters deemed more important.

Senator Hatch cautions if religious liberty is not protected, it could be lost and its impact widely felt. In its wake, a new standard would be imposed on all Americans that would curtail their First Amendment rights.

This country’s protection of religious liberty — unique in the world and through most of history — is too rare, and was won upon the sacrifice of too many, to be quietly disregarded for falling out of the popularity of the times. I, for one, plan to keep speaking to this issue . . . Religious liberty is a bedrock principle of the American political order. Its protection is of the highest order and the greatest priority. It is not merely one of many values, to be weighed against other competing social and political goals, and discarded when inconvenient.

Senator Orrin Hatch has been a staunch advocate of religious liberty during his long Senate career. Even today, President Trump while in Utah was encouraging Senator Hatch to run for reelection. The RNLA thanks Senator Hatch for his outspoken efforts to defend and preserve our religious liberty and his leadership in the Senate.

AG Sessions Upholds Rule of Law by Enforcing Religious Liberty Laws

Pursuant to President Trump's religious liberties Executive Order in May, Attorney General Jeff Sessions today issued interpretive guidance on federal religious liberty laws to federal agencies.  Not only does this protect Americans' important First Amendment rights but it also promotes the rule of law by creating standards for consistent application of existing law across the Executive Branch.  

Attorney General Sessions described twenty religious liberty principles that would be used in Executive Branch actions and summarized in detail the legal basis for these principles (citations omitted):

The people, acting through their Constitution, have singled out religious liberty as deserving of unique protection.  In the original version of the Constitution, the people agreed that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." . . .  

The Free Exercise Clause recognizes and guarantees Americans the "right to believe and profess whatever religious doctrine [they] desire[ ]."  Government may not attempt to regulate religious beliefs, compel religious beliefs, or punish religious beliefs. . . . The Establishment Clause, too, protects religious liberty.  It prohibits government from establishing a religion and coercing Americans to follow it. . . . 

Finally, the Religious Test Clause, though rarely invoked, provides a critical guarantee to religious adherents that they may serve in American public life.  The Clause reflects the judgment of the Framers that a diversity of religious viewpoints in government would enhance the liberty of all Americans.

In addition to the constitutional protections for religious liberty, Sessions summarized federal statutory protections, including the Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA), Title VII of the Civil Rights Act, and the American Indian Religious Freedom Act.  Taken together with the cases, regulations, and Executive orders interpreting them, these form the basis for protection of religious liberty and the federal government has now been given clear guidance for applying these constitutional and statutory provisions.  Sessions specifically directed the Department of Justice to take actions to implement the guidance, including review by the Office of Legal Policy of any rulemaking or agency action for conformity with the guidance and principles.

President Trump, through the expert assistance of Attorney General Sessions, is fulfilling his promise to "lead by example on religious liberty."  Clarifying and enforcing existing laws is vital to preserving the rule of law, and the Trump-Sessions Department of Justice should be applauded for advancing the rule of law.

Religious Liberty Experts Discussed Current Issues During National Policy Conference

During RNLA's National Policy Conference in May, Prof. Robert Destro from the Columbus School of Law at The Catholic University of America and Kellie Fiedorek of the Alliance Defending Freedom opined on President Trump's executive order on religious liberty, recent litigation, and other current legal issues regarding religious liberty and rights of conscience.  Here are highlights from the discussion.

On President Trump's executive order: 

Ms. Fiedorek: Definitely a step in the right direction that we would have such a commitment from a brand new administration to protecting the religious liberty of all Americans. . . . There is more to be done as we move forward. . . . We still need to see the agencies take action [to protect rights of conscience]. 

Prof. Destro: What you have is a theme that has now been set by the President.  What we need the President to do is to get those agencies staffed up with people who really understand what religious liberty is all about . . . . All you have to do is see how often the Democrats campaign in churches from the pulpit, and then you see on the other side of the spectrum all these churches that are scared to death of the IRS. And what we have found in the abuse of the IRS scandal is that they actually did have something to be afraid of.

On rights of conscience in the post-Obergefell v. Hodges era:

Ms. Fiedorek: We have such a rich history in the United States of balancing very important government interest with a vast variety of viewpoints and protecting individual freedom . . . . In the past few years, we’re seeing a growing intolerance, particularly advanced by the government, for those who want to live and work consistent with their convictions about marriage. . . . We’re seeing the government use the force of law to come after them and attempt to compel them to speak a message or participate in an event that violates their sincerely held beliefs. . . . 

The [Washington State] Attorney General conceded during oral argument that when [Baronelle Stutzman] creates floral arrangements, she does actually engage in speech, that that is actually expression.  He went on to say that the government can dictate and control what type of expression she creates and for what type of events she does so.  I think that should frighten all of us when the government has that much power that it can come in and say this viewpoint is allowed but this viewpoint isn’t. 

Prof. Destro: What we need to do is recapture in our understanding of religious freedom itself is that the Constitution has religious freedom written into its DNA.  Everybody talks about the First Amendment, but the no religious test clause of Article VI was there before the First Amendment was.  And there [are] also the negative implications – the qualifications clause[s] deliberately left religion out of the qualifications. . . . One of the most bloody battles during the Constitutional Convention was over the swear or affirm clause, because Quakers couldn’t swear, and neither could Native Americans. . . . 

This is compulsion again. [Plaintiff] is entirely entitled to use her own money to buy her birth control pills, but she has no right to stick her hand in the wallet of the Little Sisters of the Poor to get her money.  Religious liberty is not an entity to itself.  What was happening, what was suggested in Hobby Lobby and other cases was a public taking for private use. . . . We need to develop a more holistic way of looking at, we are all Americans and the Constitution welcomes us here, and if the New York dressmaker doesn’t have to make a dress for Ivanka Trump, then neither does the florist have to make the bouquet for the gay wedding.

Ms. Fiedorek: Religious freedom is for both the religious and non-religious alike.  It protects all of us.  Civil liberties absolutely travel together, and when one starts to get chipped away at, you’ll soon see other freedoms chipped away at.

On Trinity Lutheran v. Comer:

Ms. Fiedorek predicted a 7-2 decision, based on oral argument (and she was correct when the opinion was released in June): Justice Breyer was very concerned that if the lower court’s ruling stands, what does this mean for other neutral programs and benefits, including safety. . . . [Kagan] said this is a clear burden on a constitutional right, because religious individuals and groups are barred from competing in an otherwise neutral benefit. 

Prof. Destro: We have to come back to this question of neutrality in public programs. . . . The Court has come a long way since 1947 recognizing that there ought to be equal access to public benefits.

Ms. Fiedorek concluded by noting that “[protection of rights of conscience is] necessary now to preserve that marketplace where we can all participate in and engage without fear that the government’s going to punish us for holding a certain belief,” and Prof. Destro agreed that religious liberty has become equated with bigotry, when in reality it is a fundamental right that should be defended.

President Trump Making Good on Promise to Protect Religious Liberty

After years of being under attack, President Trump signed an executive order today protecting free speech and religious liberty:

Section 1.  Policy.  It shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom.  The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government.  For that reason, the United States Constitution enshrines and protects the fundamental right to religious liberty as Americans' first freedom.  Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government.  The executive branch will honor and enforce those protections.  

Sec. 2.  Respecting Religious and Political Speech.  All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.  In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury.  As used in this section, the term "adverse action" means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit.  

Sec. 3.  Conscience Protections with Respect to Preventive-Care Mandate.  The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code.   

RNLA has a panel at its National Policy Conference on religious liberty tomorrow that will discuss this executive order.  There is still time to register!