Masterpiece Cakeshop Case May Hinge on a Claim against Disparate Treatment
http://www.nationalreview.com/article/454359/masterpiece-cakeshop-scotus-jack-phillipsDecember 5, 2017
The Supreme Court on Tuesday will consider the case of Jack Phillips, a Christian baker in Colorado who declined to create a wedding cake for a gay couple because of his deeply held religious beliefs. The case implicates the conflicting promises of law — while Phillips is guaranteed free speech and religious exercise, the couple, Charlie Craig and David Mullins, are also guaranteed fair and equitable treatment in places of public accommodation.
A third issue lurks beneath this Gordian knot. This Tuesday, Colorado must prove that it has generally and neutrally applied its anti-discrimination law, called the Colorado Anti-Discrimination Act (CADA). Phillips and his amici argue that the record is replete with evidence of a double standard.
Two cases are of special relevance to approaching the matter of general and neutral applicability: Employment Division v. Smith and Church of the Lukumi Babalu Aye v. City of Hialeah. What Smith teaches is that a comprehensive prohibition connected to a compelling government interest is both neutral and generally applicable.
Lukumi holds that a law targeting a particular religion for disparate treatment, even if that law applies with equal force to all people, is neither neutral nor generally applicable. One could think of Smith and Lukumi as occupying opposite ends of the same spectrum. Phillips’s case could turn in significant part on where the justices place this controversy on the Smith–Lukumi axis. Phillips argues that his case is closer to Lukumi, given the conduct of the Colorado Civil Rights Commission in enforcing CADA. Whereas Phillips was subjected to a range of penalties for refusing to produce a cake for a gay wedding, commissioners reached different conclusions when roles were reversed.
In recent years, the commission permitted three separate bakers to rebuff Christian patrons requesting cakes promoting a traditional view of marriage. One such case, which mirrors Masterpiece in essential particulars, arose in March 2014, when a Christian fundamentalist named William Jack entered Azucar Bakery in Denver, hoping to procure two custom cakes. He asked that each cake take the shape of a Bible and feature scriptural passages condemning homosexuality and promoting the redemptive power of Christ....
