On the final day of the term, the U.S. Supreme Court announced
it would take another religious liberty case in the fall. This case involves a baker in Colorado who declined to decorate a cake for a same-sex wedding. He was sued under the state’s public accommodations law
which says that those who own businesses may not deny access to people in certain protected categories, including sexual orientation. The baker was initially found liable
by the state’s Human Rights Commission, and that decision was sustained
by the Colorado Court of Appeals.
Why would the court take this case on?
In litigation, parties often present their view of the dispute in a “black hat, white hat” way. On one side, those who paint the baker as a bigot saying, “we don't serve your kind here.” On the other side, those who say the couple is trying to force religious people to deny their own beliefs in service of a secular agenda.
These kinds of disputes are usually best left to the legislature where elected officials can consider different views and try and craft a solution that accommodates them. In courts, a dispute is often resolved with a winner and a loser.
Here, though, if the Court looks carefully at this specific situation, it is possible that it will be able to rule in a way that reflects the far more nuanced facts and gives better guidance for how states can handle what seem to be inevitable conflicts between demands for religious liberty and demands for non-discrimination.
First, here the business owner did not say a minority group was unwelcome in his shop. In fact, he was clear that he would be glad to provide his services to LGBT people; he drew the line at being asked to endorse a decision that conflicted with his religious beliefs. That is an important distinction.
Our legal system recognizes that excluding people from access to public accommodations is hurtful, but it also recognizes that requiring people to endorse messages or practices that they cannot approve, in any variety of contexts (not just about marriage and sexuality), is not the right way to address that problem.
So, the Constitution protects people from being compelled to endorse messages they don't agree with. For instance, in a parade or on license plate. A state law meant to preserve access to public accommodations can't be interpreted to require something that would be unconstitutional in another setting.
This case also involves artistic expression. It is one thing to require someone to pay to provide a cake off the shelf to a customer who comes in regardless of some irrelevant characteristic of that customer. It is quite another thing to ask a person to use their artistic talents to celebrate or promote something they don't agree with.
In other words, we think it is appropriate to require a store to sell poster board to anybody who comes inside, but we don't think it's appropriate to require a person to write a message on the poster board with which they cannot agree.
It is easy to imagine how this would work in other contexts. An earlier Colorado Human Rights Commission decision had ruled that a baker who did not want to print a message they perceived as anti-gay was free to refuse. Why not the same result here?
Clearly, the Supreme Court needs to factor in the reality that there is a distinction between refusing to serve people because of their sexual orientation and declining to participate or endorse a practice at odds with one's faith, or even one's opinions. If the court considers these kinds of complicating factors, it will be clear that Colorado law can be understood in a way that preserves access to basic goods and services, without doing something that runs afoul of other important civil rights protections, like the ability to choose how one uses one’s artistic talents and what messages that person will endorse.
In a recent Kentucky court of appeals decision, the majority rule that a county non-discrimination law clearly could not have been intended to force a printer to print a t-shirt at odds with his faith commitments. The printer had previously declined to make t-shirts for sexually explicit businesses, and forcing someone to engage in speech was clearly, according to the court, outside the intention or meaning of the public accommodations law.
In the healthcare context, the Supreme Court has also made clear that the government can, and must, accommodate the religious beliefs of employers when it decides to give wider access to contraceptives.
This case in Colorado, gives the Supreme Court a chance to extend that valuable principle to other contexts. It’s the right thing to do.
Bill Duncan is director of the Center for Family and Society at Sutherland Institute in Salt Lake City, Utah. To read more of his reports — Click Here Now.
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