Now that the Supreme Court has issued its decision in Masterpiece Cakeshop vs. Colorado Civil Rights Commission, questions arise about how the case will affect efforts to secure religious-liberty protections in the states. In Georgia, where the controversy has revolved around passing a state-level Religious Freedom Restoration Act (RFRA) and protections for faith-based adoption and foster-care agencies, the decision doesn’t obviate the need for these measures. But it does validate the contention of constitutionalist Georgians that religious dissenters cannot be simply dismissed as bigots, and are in fact protected under the First Amendment.
Masterpiece Cakeshop arose when a gay couple filed a civil-rights complaint against an evangelical Christian baker, Jack Phillips, who declined to create a custom wedding cake celebrating their marriage. Phillips explained that he would happily sell them any other product for any other event, but a same-sex wedding was among those occasions (including Halloween, “divorce parties,” etc.) that he could not participate in because of his religious beliefs.
The Colorado Civil Rights Commission found that the government could use the state’s public-accommodations statute to force Phillips to express a message he disagreed with and engage in conduct that violated his religious beliefs. According to the Commission, the complainants’ right to purchase this particular product from this particular man trumped Phillips’s First Amendment right to free speech and free exercise of religion.
But the Supreme Court 7-2 ruled in favor of Phillips. The decision was more narrowly drawn than constitutionalists would have liked, evading the obvious conclusion that the Commission had unconstitutionally compelled Phillips to engage in objectionable (to him) artistic speech. The Court merely held that the Commission exhibited an anti-religious bias that violated Phillips’s First Amendment right to free expression of his religion (one commissioner even likened Phillips’s beliefs to slavery and the Holocaust, and the Commission repeatedly ruled in favor of other bakers who declined to create cakes with a Biblical message).
But noteworthy also is the fact that the Court slapped down bureaucrats who scorn dissenters from the new sexual orthodoxy as bigots unworthy of First Amendment protection. As Justice Kennedy wrote for the Court, “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”
What does this mean for religious-liberty battles in Georgia?
It means the battles continue. Because the Court left open how, or whether, to protect certain constitutional rights against the interests of sexual expression in particular situations, the boundaries of First Amendment protections are still hazy. In the adoption context, for example, Masterpiece Cakeshop doesn’t obviously protect a faith-based agency from having to place children with same-sex couples in violation of its religious creed. Kennedy’s language aside, explicit adoption protection is still needed.
The same is true of a state-level RFRA. With RFRA protections in place — as they are in most other states — the government can’t substantially burden a person’s free exercise of religion without showing 1) a compelling government interest for doing so, and 2) that there’s no less restrictive means of accomplishing that goal. The court would have to evaluate the government’s conduct using “strict scrutiny” – the most rigorous standard applicable under First Amendment jurisprudence.
The identical Masterpiece Cakeshop scenario wouldn’t arise in Georgia because the state doesn’t have a public-accommodations law like Colorado’s. A similar situation could occur, however, in Georgia cities that do have such a law. Since Masterpiece Cakeshop doesn’t answer all the questions, RFRA would at least give the accused individual the protection of strict scrutiny that’s applied to all other First Amendment freedoms (speech, association, and press).
As Justice Gorsuch said in his concurrence, “no bureaucratic judgment condemning a sincerely held religious belief as ‘irrational’ or ‘offensive’ will ever survive strict scrutiny under the First Amendment… . [T]he place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise.”
Of course, as RFRA proponents have long argued, cases involving LGBT interests are a tiny fraction of the universe to which the statutory protections might apply. RFRA would protect people of faith who have been hindered in spreading the Gospel; prohibited from organizing religious clubs at public schools; restricted in ministering to the poor; and prohibited, without reasonable justification, from wearing religious garb. The list goes on and on. These and similar cases demonstrate why Georgia still needs RFRA.
Masterpiece Cakeshop was good news for people of faith who merely want to quietly live their lives in accordance with their religious beliefs. But it’s not the answer to anti-religious discrimination. We still need statutory protection in Georgia.
Jane Robbins is a senior fellow with the American Principles Project.
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