John Sparks: Religious liberty, freedom of speech & gay rights
Among recent actions by the U.S. Supreme Court, a four-sentence order may set the stage for the court to eventually address the collision between free speech and religious freedom and gay rights.
The order voided a judgment by the state of Oregon that had imposed a $135,000 fine on Portland-area bakery owners — the Kleins — for refusing to bake a wedding cake for a lesbian couple. Oregon maintained that its anti-discrimination law condemned such a rebuff even when the bakery owners’ religious convictions run counter to participating in a same-sex wedding.
Besides vacating the fine, the court sent the case back to the Oregon Court of Appeals to be reconsidered in light of the Masterpiece Cakeshop decision in which Christian baker Jack Phillips refused, on religious grounds, to bake a wedding cake for a gay couple’s marriage in Colorado.
Colorado’s case against Phillips had relied on language in an earlier case, Employment Division v. Smith (1990), which said that religious liberty claims could not be used as a defense against “generally applicable” laws that were “neutrally” enforced. However, the Supreme Court found that the Colorado proceedings against Phillips were rife with religious hostility toward him.
Once the Oregon court has spoken on the matter in the way it is expected to rule, the questions of religiously hostile proceedings and selective enforcement will have been disposed of. That will leave the central constitutional questions of free speech and free exercise of religion for the U.S. Supreme Court to face, which it effectively avoided in Masterpiece.
What are the constitutional claims supporting the positions of faith-guided commercial providers who are asked to set aside their religious beliefs by customers who ask them to offer services contrary to their convictions?
The first basis for relief from the reach of the anti-discrimination laws is the claim that such laws violate the freedom of speech of the providers. Federal constitutional cases have long recognized that protecting speech is not limited to “the spoken or written word.” Engaging in conduct that expresses a point of view or idea is speech, and that expressive conduct is protected by the First Amendment.
In addition, citizens cannot be forced to deliver a message provided by the government or another person. The oldest and best-known case recognizing this idea — called the “compelled speech doctrine” — is W.Va. State Board of Education v. Barnett. There the court said that public school children could not be required to salute the American flag or say the pledge of allegiance when to do so was against their religion’s teaching. The case is usually viewed as a free speech case in which the court forbade the government from making citizens express a message contrary to their beliefs.
The wedding providers maintain that Oregon laws are, in effect, requiring them to use their artistic expression to further a conjugal union against which they have serious religious reservations, or face a legal penalty. When their only other choice is to abandon the means to make a livelihood that they have chosen, the burden placed upon them is unconstitutional.
The second constitutional claim asserted by the wedding providers is that their religious liberty under the Free Exercise clause of the First Amendment has been denied to them by the anti-discrimination laws. Employment Division v. Smith makes that claim more difficult. The Smith defendants consumed an illegal drug — peyote — as part of a Native American religious ceremony. They were dismissed from their jobs with a drug rehabilitation organization and lost a claim for unemployment compensation. They argued that their free exercise of religion was being infringed upon by Oregon.
The Supreme Court disagreed, maintaining that “neutral” and “generally applicable” regulations could not be avoided by religious liberty claims.
But, unfortunately, the court’s opinion needlessly swept away an almost three-decades-old case which had established a sensible legal formula for addressing those instances in which religious convictions clash with existing legislation. That formula, called the Sherbert test after Sherbert v. Verner (1963), protected religious believers when the court found that a law or regulation “substantially burdened” their “free exercise of religion,” and that the government had no “compelling interest” at stake, or that it overlooked a “less restrictive” way to further its interest. Congress vigorously sought to counter the Smith decision by passing the Religious Freedom Restoration Act (RFRA). However, the RFRA was ruled as only applicable to federal laws and regulations and not to the states and therefore does not help the Kleins.
Given the clear facts and the uncertainty that remains for religious providers, it is high time for the court to hear and decide them. For the most part, the reasoning of Smith should be discarded and Sherbert reinstated. The court should not avoid these fundamental questions of free speech and free exercise of religion any longer. Rather, it must courageously set the cases for oral argument and address these key issues head on.