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Supreme Court Hears Major Religious Liberty Case

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On Tuesday the U.S. Supreme Court heard oral arguments is one of most important free speech and religious liberty cases of the year.

In the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court will decide whether the First Amendment is violated when a state punishes a citizen for refusing, for reasons of religious conscience, to create a cake that celebrates a same-sex wedding. (ERLC joined other Baptist, Christian, Jewish, and Muslim denominational entities, colleges and universities, legal associations, and individuals in filing an amicus brief on behalf of Phillips.)

Jack Phillips, owner of Masterpiece Cakeshop, declined to create a cake for a same-sex wedding because he believes it would be sinful to participate in celebrating a same-sex wedding. Despite the fact that another bakery readily created the cake the couple wanted, they brought a sexual-orientation-discrimination claim against Phillips. A state civil rights commission found Jack Phillips had violated Colorado law, and prohibited him from creating cakes for any wedding unless he also created cakes for same-sex weddings.

Phillips appealed to Colorado’s appellate court, which upheld the commission’s ruling, and the Colorado Supreme Court declined to hear his appeal. The U.S. Supreme Court, however, granted review of his free speech and free exercise claims and heard oral arguments on December 5.

The conservative justices appeared to be sympathetic to Phillips claim. For example, Justice Alito noted that according to the state of Colorado, a baker who supports same-sex marriage can refuse to create a cake with a message that is opposed to same-sex marriage. “But when the tables are turned and you have the baker who opposes same-sex marriage,” said Alito, “that baker may be compelled to create a cake that expresses approval of same-sex marriage.”

The Court’s liberal justices, however, appeared to side with the Colorado Civil Rights Commission. Justice Sotomayor compared attitudes against same-sex marriage to animus against interracial marriage. She also implied that anyone who disagreed with same-sex marriage shouldn’t work in the wedding industry:

It’s not denigrating someone by saying, as I mentioned earlier, to say: If you choose to participate in our community in a public way, your choice, you can choose to sell cakes or not. You can choose to sell cupcakes or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone.

Justice Kennedy, who is expected to be the swing vote in this case, expressed concern that, based on statements made by commissioners, the Colorado commission was expressing hostility to religion.

“[T]olerance is essential in a free society,” said Kennedy, “And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

You can read the transcript of the oral arguments here.

This week on ERLC podcasts: Daniel Darling talks to Marvin Olasky, editor-in-chief of World Magazine, about journalism and the pursuit of truth. On the Capitol Conversations podcast, Matt Hawkins and Travis Wussow talk to Jose Ocampo, a “Dreamer” and DACA recipient. And on the new ERLC podcast series, “How to Handle,” Trillia Newbell talks to Lore Ferguson Wilbert about broken families.

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