Wedding cakes and same-sex marriages are back before the Supreme Court, and this time the justices are being asked to rule broadly that the First Amendment’s protection of the “free exercise” of religion shields conservative Christians from state civil rights laws.
An Oregon couple who were fined $135,000 for refusing to make a cake for the marriage of two women have asked the justices to take their case. If the court does so, the new conservative majority could significantly change the law on religious liberty and LGBTQ rights. The justices could announce as early as Monday whether they will hear the case.
For nearly three decades, the court has followed a rule set down in a 1990 decision written by a conservative hero, the late Justice Antonin Scalia. Rejecting a claim brought by Native Americans who ingested peyote as part of a religious ceremony, Scalia said that the Constitution’s guarantee of the free exercise of religion did not provide a shield against a “neutral and generally applicable law.” In the peyote case, two men had been fired for using an illegal drug.
But with conservative Christians now claiming their religious rights are under assault, the court’s conservatives have shown a renewed interest in the free-exercise clause.
In the Oregon case, lawyers for Melissa and Aaron Klein said the couple were forced to shut down their Sweet Cakes store in the city of Gresham because of the conflict over their religious beliefs. They asked the court to overrule Scalia’s decision and declare that the Constitution does provide a religious exemption to Oregon’s civil rights law.
Oregon, like California and 20 other states and dozens of large cities, requires public businesses to provide “full and equal” service to all customers without regard to race, sex, religion or sexual orientation.
Their timing looks good.
In January, Justices Samuel A. Alito Jr., Clarence Thomas, Neil M. Gorsuch and Brett M. Kavanaugh suggested they were ready to reconsider how far the free-exercise clause reached. They issued a partial dissent when the court turned down an appeal brought by a football coach who said he was fired for leading prayers on the field after games. The coach unsuccessfully claimed his firing violated his right to free speech. Alito suggested he should have appealed based on his rights to freely exercise his religion.
Scalia’s 1990 opinion “drastically cut back on the protection provided by the Free Exercise Clause,” Alito said in that case, Kennedy vs. Bremerton, noting with seeming regret that the coach had not asked the court to reconsider the earlier decision.
This time, the issue is front and center. Lawyers for the bakers in Klein vs. Oregon Bureau of Labor have asked the court to “revisit” the rule on religious liberty.
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SOURCE: Los Angeles Times, David G. Savage