In Cake Case, SCOTUS Sweetens Legal Landscape For State Legislatures To Reintroduce Religious Freedom Laws


You'd think it was a joke. Two gay men walking into a cake shop. They explore the options and start conversing with the cake master about what would be best for their big, fat gay wedding. You'd think the baker would be happy to oblige, given that same-sex couples tend to have a higher household incomes than opposite-sex couples.

At the end of the day, business is business, right? Wrong.

If you haven't heard already, the Supreme Court ruled 7-2 in favor of Jack Phillips, owner of Masterpiece Cakeshop in Colorado, who refused to bake a custom cake for a gay couple because of his religious beliefs. But the news isn't all bad.

In my quick skim of the case, it seems that the Court invoked the Doctrine of Constitutional Avoidance, which essentially means that the Court will avoid deciding on any constitutional questions and try to decide the case on a nonconstitutional basis.

The case was decided on a narrow basis that zoned in on the Colorado Civil Rights Commission's overt hostility regarding Phillips' sincerely held religious beliefs; while avoiding the constitutional question regarding his freedom of speech (Phillips argued that making custom cakes amounts to expression and therefore should be protected under freedom of speech).

Which means we can expect the many constitutional questions left unanswered will be revisited in the coming years. All in all, this is interpreted as leaving it open to allow administrative agencies to weigh how a business owner's sincerely held beliefs balances against the state's compelling interest in protecting the right of same-sex couples from discrimination. The Court seems to suggest that this can be done right. I suppose we'll have to wait and see.

So not all bad news, but still worrisome in that this is widely seen as a victory for evangelicals, a strong base of support for President Donald J. Trump.

This victory, no matter how small, will most likely lead to the re-introduction of the infamous Religious Freedom Restoration Act (in all of its varied forms) in state legislatures all across the country.

Supreme Court cases like this not only give momentum to fundamentalist movements across the nation, but also gives policymakers glimpses into what may or may not past constitutional muster in the eyes of the Court. Most likely they will try to hone in on the analysis of what constitutes hostility or bias and try to craft legislation that defines it in a way that favors business owners who wish to refuse service based on their religious beliefs. It'll be interesting to see what crops up in the coming months and years.

So buckle up, people. And vote!