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Will the Supreme Court Restore Religious Liberty?

04 Dec 2017

Roger Pilon

Can religious liberty coexist alongside modern
anti-discrimination law? That’s the question the Supreme
Court will consider tomorrow when it hears oral argument in
Masterpiece Cakeshop v. Colorado Civil Rights

The case arose when Charlie Craig and David Mullins, a gay
couple, walked into the Masterpiece Cakeshop in Lakewood, Colorado,
owned by Jack Phillips, a devout Christian. As with all of his
customers, Phillips had no problem with selling the couple anything
on his shelves. But he declined to make a custom-made cake for
their upcoming wedding, citing his religious convictions. And he
was willing to direct them to nearby bakeries that would design
their wedding cake, as he had with others.

That wasn’t good enough for Craig and Mullins. They filed
a complaint with the Colorado Civil Rights Commission alleging that
Phillips had violated the Colorado Anti-Discrimination Act. Finding
in their favor, the commission ordered Phillips, among other
things, to conduct comprehensive staff training, including for his
family members who worked in the bakery —
“reeducation,” in effect. The commission’s
decision put Phillips to a choice: Ignore his religious beliefs, or
go out of business.

It’s time to start
peeling back efforts to regulate our associations and let them
arise naturally, without the heavy hand of the state.

After supporters of Craig and Mullins picketed the bakery,
Phillips lost 40 percent of his business and most of his employees.
He appealed, but like courts around the country that have decided
similar complaints against bakers, florists, photographers, and
others, Colorado’s Court of Appeals upheld the commission and
the Colorado Supreme Court declined review. The U.S. Supreme Court
will now draw some lines, we hope.

A little history will put this case in perspective. Under common
law, private parties were generally free to associate, or not, as
they wished. There were exceptions, of course. Monopolies, common
carriers, and public utilities had to serve everyone on reasonable
terms. So also oftentimes for isolated public accommodations like
inns and taverns. But service was generally not compelled where
markets offered multiple choices, as here. In short, the
presumption was on the side of freedom of association — and
the implicit right to discriminate for any reason, good or bad, or
no reason at all.

By contrast, public institutions, belonging to all of us, could
not discriminate except on grounds related to their function.
Slavery and Jim Crow made a mockery of that principle, of course.
But when we decided finally to end segregation systematically,
starting with the 1964 Civil Rights Act, we prohibited most private
discrimination as well — probably the only way to break the
back of institutionalized racism in the South.

We’re more than half a century beyond those days, even if
prejudice of many kinds remains, as it always will at some level.
The question now is what to do about it, especially when measures
that seemed necessary decades ago intrude today on basic principles
like freedom of association — and on so fundamental a
principle as religious liberty. What have we come to when a law
like Colorado’s enables a gay couple to bring the wrath of
the state down upon an individual, driving him out of business,
simply by requesting a custom-made cake, when the couple could
easily go down the street to get that cake?

The conclusion is inescapable, buttressed by the state’s
reeducation remedy, that Craig and Mullins were animated by what
they saw as Phillips’s intolerance. But they read him
wrongly. He was not asking the state to come down on them. And he
was willing to sell them his ready-made goods. It was the next step
that he was unwilling to take — to create a custom-made cake
that implicated him in a ceremony inconsistent with his religious
convictions. If there is intolerance here, it is from those who
would force a man to choose between his religious beliefs and his

Set aside the practical question of how, were the state to
compel performance, it would police its quality: Would a
disgruntled couple have a legal action against a baker whose heart
was not in it? The broader concern, beyond this law’s
implicit aim of driving “incorrect” views underground,
is the failure of the law’s supporters to appreciate how
freedom of association encourages a multitude of private religious
and social associations in infinite variety, as the relatively
unregulated world of websites makes perfectly clear. This law
frustrates that by forcing people into associations they would not
voluntarily choose. It’s time to start peeling back these
efforts to regulate our associations and let them arise naturally,
without the heavy hand of the state. And what better place to begin
than with our first freedom?

Roger Pilon is
vice president for legal affairs at the Cato Institute, which filed
an amicus brief supporting the appellants in the Masterpiece
Cakeshop case.

Click here to view the full article which appeared in CATO Journal