When the Supreme Court overturned centuries of law and tradition in ruling that there is a right to same-sex marriage, it also created a huge muddle in which that newly-invented right conflicted with the enumerated First Amendment right of freedom to practice your religious beliefs without government restraint. In handing down that ruling, the SCOTUS made clear that care should be taken that it not infringe on religious beliefs. But the ink was barely dry before Christian bakers, florists and other wedding service providers in blue states were being sued, harassed, hounded, fined, branded as “haters” and driven into bankruptcy simply for declining jobs that would require them to violate their sacred belief in the Biblical definition of marriage.
(Say, remember when same-sex marriage activists questioned why Christians would oppose it when it would never have any effect on them? That seems as long ago as the silent movie era.)
The case of Colorado baker Jack Phillips would have been an excellent opportunity for the SCOTUS to clean up the giant mess it made and issue a broad-based ruling reaffirming that the First Amendment’s protection of religious freedom is #1 for a reason and that it means what it says and is supreme over all other laws. Unfortunately, while today’s 7-2 ruling in favor of Phillips is welcome and long-overdue relief for him, it still only tinkers around the edges of fixing the damage wrought by the original decision. The ruling focuses on the egregious actions of the Colorado Civil Rights Commission, which was relentlessly and openly hostile to Phillips’ religious beliefs every step of the way, never once according him even the benefit of the doubt that he had a legitimate objection of conscience.
The ruling (again written by the original muddler, Justice Kennedy) still doesn’t clarify the larger issue. Kennedy writes:
“The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here.”
So the state can infringe on the free exercise of religion as long as it isn’t hostile to religion? And who will make that subjective determination? State officials, like those on the Colorado Civil Rights Commission?
This ruling is something to celebrate, because the treatment of Jack Phillips was outrageous and unconstitutional. But it still leaves unfinished the untangling of the knot of conflicting rights the SCOTUS created. I expect there will be many more such cases as liberal state officials try to find ways to infringe on religious beliefs while being cagier about hiding their hostility to religion. Maybe someday, a future SCOTUS (possibly one with a Trump-appointed replacement for Kennedy) will get tired of dealing with the endless end-run attempts and finally issue a decisive ruling that the government cannot compel anyone to violate his or her religious beliefs, but it would have been a lot easier for everyone concerned if they’d just done it now.
I’ll bet the Founders thought they were being fairly clear when they wrote, as the very first words of the Bill of Rights, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”