U.S. Supreme Court Review: 2017-2018, 1118 SCBJ, SC Lawyer, November 2018, #18

AuthorMiller W. Shealy Jr., J.
PositionVol. 30 Issue 3 Pg. 18

U.S. Supreme Court Review: 2017-2018

Vol. 30 Issue 3 Pg. 18

South Carolina Bar Journal

November, 2018

Miller W. Shealy Jr., J.

The 2017-2018 term of the U.S. Supreme Court was a highly contested one. Most of the important decisions were decided by a 5-4 vote. Justice Anthony Kennedy, who resigned at the end of the term, voted with the five-member “conservative” majority in most of these cases.

First Amendment and Religion:

It is hard to say that there is a single most important case this term. However, the most anticipated case is without a doubt the now famous cake baker case, Masterpiece Cake Shop v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018) (7-2). It was anticipated that the Court would issue a major ruling on the rights of persons based on free speech and religion to refuse to serve certain persons because of activities related to their sexual orientation. This did not happen. Thus, in a sense, the Court sidestepped the big issue. As background, the Court set forth established law and the problem as follows: Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. As this Court observed in Obergefell v. Hodges, 576 U.S. __, 135 S.Ct. 2584 (2015), “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Id., at __, 135 S.Ct., at 2607. Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (per curiam ); see also Hurley v. Irish–American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572 (1995) (“Provisions like these are well within the State’s usual power to enact when a legislature has reason t o believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments”).

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.

It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court’s precedents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and...

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