Free Exercise Clause is No Defense Say Courts (but some descrimination should be allowed, maybe?)

Since both the New Mexico wedding photographer and the Colorado wedding cake cases said to be the impetus behind SB 1062 have both been decided in court, perhaps the decisions might prove instructive to our discussions. The decisions for Craig and Mullins v. Masterpiece Cakeshop and Elaine Photography v. Willock can be read here and here.

Law Professor Sherry F. Colb writing for’s Verdict blog wrote a superb brief on the New Mexico case and the Colorado case is fairly short and readable, so I hope you look at both.

In both cases, the businesses refused their services to individuals who were seeking them for a same-sex wedding. Both businesses used very similar arguments in court, including invocation of the Free Exercise Clause. Both businesses were ruled against. The courts used very similar arguments in their rulings.

However, New Mexico and Colorado have statutes that specifically ban discrimination based on sexual orientation so the courts’ decisions revolve around the fact that the businesses were trying to justify their violation of the laws.

In Arizona, on the other hand, there are no legal protections against discrimination based upon sexual orientation. There is no federal prohibition of such discrimination either. So while New Mexican and Coloradan courts can talk about how laws do or do not apply, we can only talk about what ought or ought not to be. This makes the backers of the proposed Arizona law seem particularly paranoid and petty.

But if we are relegated to talking about what ought to be, Conor Friedersdorf writing about the reactions on case at the Atlantic, offers a case for allowing businesses to refuse their services to same-sex couples:

But I can respect their right to think differently, and if they told me that they wanted no part of a gay wedding not because they have anything against gays, but because they’re committed to participating only in sacramental marriage as their church defines it, I’d have no problem believing them. I certainly don’t think they should be coerced into doing otherwise if they own a wedding-related business. Is it really worth depriving a tiny religious minority of following their conscience or their livelihood to make a point that has little bearing on gay equality? The plight blacks faced circa 1950 was sufficiently atrocious to justify extreme remedies, including the coercion of private businesses.**

A plausible case can be made that gays today need special protection from bullying and violence. Nothing about their access to wedding-industry goods and services is even remotely comparable to the reality that justified civil-rights-era coercion, though I’d personally boycott wedding businesses that didn’t welcome gay customers.

Put another way, I won’t deny the ugliness of refusing to sell someone a wedding cake because of their sexual orientation … but neither will I deny the ugliness of sending agents of the state to compel a person to violate their conscience or close shop.

[…] And while I don’t want the state coercing anyone to bake cakes, I do think people with hateful views towards gays should be subject to shame and, more importantly, persuasion. The case for gay rights is very convincing, especially when it involves exposure to gays. Haters grow more rare and powerless every year.

[…] This whole issue strikes me as a case where coerced nondiscrimination would wind up making almost no one better off—how many people want their wedding serviced by people who object to their union?—while making a small number of Christians and most gays worse off, the former because they’ll face the conscience/legal sanction dilemma, and the latter because the battle for public opinion that gays are quickly and decisively winning can only be set back by aggrieved Christian bakers in the headlines. If policymakers just do nothing, the problem will get smaller with every year that passes, because anti-gay animus is rapidly decreasing, and once it’s gone, the number of religious believers who’ll still object to gay weddings to the point of not selling goods to them will be minuscule.

This hits at the heart of the question we asked at the beginning of this class: what is the best way to  achieve justice?  Through democratic action, such as protest, or the law?

It seems to me that the most successful social transformations in America saw both. The Civil Rights movement paired robust democratic action with strategic court cases.

In the 1973 decision Roe v.Wade, in which seven people made abortion illegal for the entire U.S. overnight.

Two very different issues, I know, but compare the progress made in the shift of societal attitudes on race and gay rights—not to say things are even close to perfect or even optimal in those areas—to abortion where as of last year 40 percent of Americans believe it “should be illegal in all or most cases,” which is up slightly  from where it was in 1995.

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