The Supreme Court has declined to accept the appeal of an Oregon baker who refused to bake a cake for a same-sex couple’s wedding reception, sending it back to the courts below for reconsideration based on its holding in a similar case from Colorado last year:
WASHINGTON — The Supreme Court on Monday declined to hear an appeal from the owners of an Oregon bakery who were fined for refusing to create a wedding cake for a gay couple. In a brief order, the justices instead returned the case to lower courts in Oregon “for further consideration” in light of a decision last year in which the court ducked a similar issue in a case concerning a baker from Colorado.
The court’s action on Monday left still unresolved the question of whether many kinds of businesses, including florists, photography studios, calligraphers and tattoo artists, may discriminate against same-sex couples on religious grounds.
Lower courts have generally sided with gay and lesbian couples who were refused service, ruling that they are entitled to equal treatment, at least in parts of the country with laws forbidding discrimination based on sexual orientation. The owners of businesses challenging those laws have argued that the government should not force them to choose between the requirements of their faiths and their livelihoods, citing constitutional protections for free speech and religious liberty.
The new case started in 2012 when the owners of a bakery called Sweetcakes by Melissa refused to make a wedding cake for a lesbian couple, Rachel Bowman-Cryer and Laurel Bowman-Cryer. The owners, Melissa Klein and Aaron Klein, said doing so would violate their religious principles.
The state labor bureau ruled against the Kleins, saying they had violated an Oregon law barring discrimination based on sexual orientation and ordering them to pay $135,000 in damages. A state appeals court affirmed the bureau’s decision and rejected arguments from the Kleins that two parts of the First Amendment, its protections of free expression and religious freedom, allowed them to turn the couple away.
The Oregon Supreme Court declined to hear their appeal, and the bakery went out of business.
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In their petition seeking review in the Oregon case, the bakery’s lawyers said hearing their appeal would allow the justices to answer the question left open last year. “It squarely presents the constitutional questions that the court did not answer in Masterpiece Cakeshop,” they wrote.
The state countered that its anti-discrimination law merely “requires petitioners to provide to same-sex couples the same service that petitioners would provide to heterosexual couples — a cake for their wedding.”
The Oregon case was in one way broader than the one from Colorado, as it asked the justices to overrule an important precedent from 1990, Employment Division v. Smith. In a majority opinion written by Justice Antonin Scalia, the Supreme Court ruled that neutral laws of general applicability could not be challenged on the ground that they violated the First Amendment’s protection of the free exercise of religion.That decision, arising from a case involving the use of peyote in Native American religious ceremonies, is unpopular among conservative Christians, who say it does not offer adequate protection to religion, and with some justices. In January, the court’s four most conservative members — Justices Kavanaugh, Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — signaled that they were open to reconsidering the decision.
This case comes in the wake of the Supreme Court’s ruling last year in a somewhat similar case involving a Colorado baker who also declined to bake a case for a same-sex wedding reception, citing his religious objections as justification. The couple who had placed the order filed a complaint against the baker with the Colorado Civil Rights Commission charging him with violating the state’s law barring discrimination in public accommodations based on a number of criteria including sexual orientation. The commission held a hearing and ruled against the baker, who then appealed to the Colorado Supreme Court, where he also lost. In that case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the U.S. Supreme Court ruled that the trial court below had failed to give appropriate deference to the arguments that the baker made regarding the role his religious beliefs played in his decisions and remanded the case with instructions regarding the proper procedure for handling those arguments. The Court did not, however, rule on the merits of the baker’s claims nor did it provide an answer to the central question in the case, namely the question of whether religious liberty trumps the state’s interest in enforcing anti-discrimination laws.
The situation in the present case is similar to what unfolded in Colorado, and the Court has essentially handled it in the same manner that it handled Masterpiece Cakeshop. Rather than ruling on the merits, the Court remanded the case in light of the ruling in the Colorado case, asking the trial court and the appellate court to review the case to ensure that the baker’s religious liberty claims were given proper deference. This, of course, raises the probability that the case will end up back before the Supreme Court in a year or two. In the meantime, there are other cases raising this same issue that is likely to make their way to the Justices sooner rather than later.
The most notable of these is the case of a Washington state florist who refused to provide services for a same=sex wedding. That case had previously been before the high court and was remanded after the Colorado case was decided with instructions that the lower courts review the case in light of the ruling in Masterpiece Cakeshop. Just last week, the Washington State Supreme Court issued its second ruling in the case, finding once again for the state and ruling that the case did not suffer from the same defects that had existed in the Masterpiece Cakeshop case. The next step for that case, of course, would be another appeal to the U.S. Supreme Court, meaning that we might just get a definitive ruling on this issue some time in the COurt’s next term.
