Access DENIED? The Supreme Court Last Term Dodged The Question Of Whether Religion Can Be Used To Discriminate, But The Issue Is Far From Over.


The U.S. supreme Court's M starting its 2018-19 term this month. Although we don't know yet the range of issues the high court will confront, many observers believe the question of whether religious freedom confers a right to discriminate may surface.

The court last term dodged this issue. In its Masterpiece Cakeshop decision, the court approached the question of how far the owners of a public accommodation can use their religious beliefs to operate the business but largely avoided key constitutional issues of free expression and freedom of religion raised by a baker. Rather, in a narrow ruling based on administrative procedure, the court ruled that the Colorado Civil Rights Commission's treatment of the baker was hostile to his religious viewpoint.

Although the 7-2 ruling favored the baker's refusal to make a wedding cake for a same-sex couple, Justice Anthony M. Kennedy asserted that business owners are not permitted to use religion, or religious objections, to discriminate against protected classes of groups or individuals. Thus, the business owner's First Amendment claims of free speech or free exercise of religion do not supersede public-accommodation laws, which exist in most states. Some of these laws prohibit public establishments from discrimination based upon sexual orientation.

An important First Amendment principle is that government cannot compel speech, and this principle was the basis of the baker's claim for his exercise of religious freedom. He argued that the Colorado anti-discrimination law compelled his speech by requiring him to exercise his artistic talent to express a message he disagreed with; this message, he said, would violate his free exercise of religion.

As mentioned, the Supreme Court was skeptical of these claims.

The Alliance Defending Freedom, a conservative Christian legal organization with an approximately $50 million annual budget, sponsored the lawsuit. Its broad legal strategy applies First Amendment freedom of speech protections to support and expand conservative definitions of freedom of religious expression. The group also seeks to diminish separation of church and state by arguing that American law should be based on Christian rather than constitutional principles.

Kennedy's majority opinion in Masterpiece affirmed that religion cannot be used to justify discrimination against...

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