Who are the friends of religious liberty?

In the “cake case,” Masterpiece Cakeshop v. Colorado Civil Rights Commission, scheduled for oral arguments in the Supreme Court on Tuesday, December 5, noticing who are the “friends” (amici) of which side is most instructive not only about the law but also about American society.

After working at other bakeries for two decades, Christian baker Jack Phillips opened his own bakery, calling it “Masterpiece” with the purpose of baking artistic cakes.  In refusing an order for the celebration of a “same-sex wedding”, Phillips, who served homosexuals for other occasions, said that his Christian beliefs would not allow him to participate in such an event.  The Colorado Civil Rights Commission and a Colorado appeals court found him in violation of the Colorado Civil Rights Act which had recently been amended to prohibit discrimination based on “sexual orientation” at businesses, that is, “places of public accommodation.”  He was ordered to stop baking all wedding cakes if he continued to refuse cakes for same-sex weddings; submit himself and his staff, which include family members, to a “comprehensive” program of re-education; and to keep records for two years of all baking orders that he rejected.

In his appeal to the Supreme Court, Phillips is arguing that the state of Colorado, through its Civil Rights Commission, is denying him the protection of the Free Speech and Free Exercise clauses of the First Amendment.  He claims that baking a cake is conduct that includes expression and that the order of the Colorado court, regardless of the particular wording on the cake, requires “compelled speech” of him.  He argues that his forced participation in a same-sex wedding would cause him to violate his Christian beliefs.

Thirty-six of the 46 current Democrat United States senators together with 175 of the current 194 Democrat United States representatives have filed a brief against Phillips.  The list includes Senator Charles Schumer (NY), prominently identified on the brief as “Senate Democratic Leader”, and Nancy Pelosi (CA), equally prominently identified on the brief as “House Democratic Leader.”  The brief’s main theme is the similarity between Colorado’s civil rights act and federal civil rights acts. What the brief ignores is that federal civil-right laws do not include “sexual orientation” as a basis for illegal discrimination.  The emphasis of the brief is on the need for Phillips to comply with laws applicable to all businesses.  The brief also denies that any of Phillips’ free speech rights, including expressive conduct, have been infringed.

As for free exercise of religion, the Democrats’ brief accuses Phillips of imposing “the tenets of his own faith” on “statutory schemes which are binding on others.”  The brief contends that religious exemptions “should not be used to further entrench discriminatory conduct in places of public accommodation.”  Otherwise, courts would be engaging in “remarkable deference to businesses that discriminate on the basis of the religion of their owners or employees.”  These arguments of the overwhelming majority (88 percent) of elected Democrats in the Congress are in keeping with their party’s platform in last year’s election, where they said: “We support a progressive vision of religious freedom that respects pluralism and rejects the misuse of religion to discriminate.”

A minority (30 percent) of the Republican members of Congress filed a brief in support of Phillips: eleven of the 52 Republican United States senators together with 75 of the 239 Republican United States representatives. Overall, then, of the 535 members of Congress, 16 percent are supporting Phillips, 39 percent are opposing him, and 45 percent have not spoken.

Twenty states, among which are California, Oregon, and Washington, but also including North Carolina, have filed briefs supporting the rulings in Colorado against Phillips.  Nineteen states from the South, Midwest, and West have filed in support of Phillips.  Of religious organizations, the Catholic Church has filed a brief as a friend of Phillips.  As has Agudath Israel of America and the Billy Graham Evangelistic Association, the National Black Religious Broadcasters, the National Hispanic Christian Leadership Conference, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and five orthodox Jewish organizations. Filing against Phillips are the Central Conference of American Rabbis, on behalf of several organizations, including the Rocky Mountain Conference of the United Church of Christ; the Unitarian Universalist Association; and certain Presbyterian, Methodist, Church of Christ, and Lutheran groups.

Corporations who filed in support of the Colorado rulings include Apple, Intel, Amazon, Cisco, Airbnb, and Uber.  Comparing their business operations to that of one-shop tradesman Phillips, they assert that a ruling for Phillips would “fundamentally change the way businesses operate” because businesses would have to scrutinize their customers’ objectives in making purchases in order to decide if they favor those objectives.  Such a contention, of course, flips Phillips’ argument on its head, for if a business does not want to know the individual purposes of its customers, it need not do so.

And, indeed, in another direct comparison between corporate operations and Phillips’ shop, thirty-four “Corporate Law Professors” argue that Phillips would be granted “a competitive advantage in the marketplace” if it is relieved from compliance with the Colorado law.  Moreover, allowing religious exemptions—which courts should not do “reflexively”—would perforce set the stage for other possible business exemptions, including freedom from minimum wage laws and parental leave laws (out of a belief “that a woman’s place is in the home”) and paying equal wages to women and men.  Businesses would also be free to require employees to attend “mandatory devotional services.”  Overall, the corporate law professors say, laws should not allow a business to operate on the basis of “a ‘Road to Damascus’ conversion on any number of political or religious concepts.”

The American Bar Association filed against Phillips, as did the American Psychological Association, stating that “the pertinent scientific and profession literature supports the need” for protection of “sexual minorities.” The United States Department of Justice filed a brief defending Phillips’ free speech rights and stating that because the case should be decided on the basis of free speech alone, it need not address the free exercise issue.

There are numerous other briefs on both sides.  But the briefs described and referred-to here represent large institutions of great societal influence and power and, thus, their decisions to participate in this case go beyond constitutional and intellectual arguments.