Saturday, September 16, 2017
Doug Laycock and I have filed a brief in the Masterpiece Cakeshop case on behalf of amici who include a variety of religious and religious-freedom organizations: the Christian Legal Society, the LDS (Mormon) Church, the National Association of Evangelicals, the Union of Orthodox Jewish Congregations, the Queens Federation of Churches, and others. The brief has several important emphases, which are to one extent or another distinctive--sometimes quite different from other briefs in the case. Here are four representative passages:
From the statement of interest of amici:
Amici are religious organizations who accept that same-sex civil marriage is the law of the land. But some deeply religious Americans, including some of amici’s members, cannot in good conscience assist with same-sex weddings. Now that the Court has protected the liberty of same-sex couples, it is equally important to protect the religious liberty of these conscientious objectors. Most of these amici are involved in ongoing efforts, mostly unsuccessful so far, to negotiate legislation prohibiting sexual-orientation discrimination while providing religious exemptions.
Laws protecting the liberty of both sides are extremely difficult to enact in our polarized political environment; too many on each side resist liberty for the other. These amici believe that religious liberty is a God-given right, that it reduces human suffering, and that it is an essential means by which people with deep disagreements live together in peace. A fundamental purpose of the Constitution is to protect the liberty of both sides, and especially so when powerful factions seek to deny that liberty.
From the summary of argument, parts I and II:
The classic American response to deep conflicts like that between gay rights and traditional religious faith is to protect the liberty of both sides. The very arguments that underlie protection of same-sex marriage also support strong protection for religious liberty. Religious believers and same-sex couples each argue that a fundamental component of their identity, and the conduct that flows from that identity, should be left to each individual, free of all nonessential regulation.This case is about assisting with a wedding. It does not involve any alleged right to generally refuse service to same-sex couples, or to act on conscience in purely commercial contexts. It involves a right to act on conscience in a religious context—in connection with a wedding.
From the summary of argument, part III:
Colorado’s Anti-Discrimination Act, as applied, violates the Free Exercise Clause. It is neither religion-neutral nor generally applicable. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).A. Colorado protected bakers who cannot in conscience create cakes that denounce same-sex relationships. But Colorado denied protection to petitioner, who cannot in conscience create a cake that celebrates a same-sex wedding. The state court applied flatly inconsistent reasoning to the two claims. This differing treatment cannot be explained on the ground that the message of the other bakers’ cakes would be explicit and the message of petitioner’s cake implicit. That would not matter to the court’s stated logic, and either way, petitioner would be helping to celebrate a wedding he believes is sinful.B. Neutrality and general applicability are distinct requirements: while non-neutrality focuses on targeting and discrimination, lack of general applicability is shown when the state regulates religious conduct while leaving analogous secular conduct unregulated—even if in only one or a few instances. The question is whether the unregulated “nonreligious conduct … endangers these [state] interests in a similar or greater degree” than the regulated religious conduct. Here the unregulated conduct—refusing to provide a cake denouncing same-sex marriage for a conservative Christian customer—endangers the state’s interests as much as the regulated conduct—refusing to create a cake celebrating same-sex marriage for a same-sex couple. Unwillingness to promote a protected group’s message either is discrimination or it is not. Sending a customer elsewhere because of disagreement with his requested message inflicts the same inconvenience, and the same insult, whether the message about same-sex marriage is celebration or condemnation....D. Vigorous enforcement of the neutrality and general-applicability requirements is vital to preserving meaningful religious liberty. Exempting secular but not religious interests deprives religious minorities of vicarious political protection. And regulating religious conduct devalues religion as compared to the unregulated secular conduct.
From argument section IV, re lack of a compelling governmental interest on these facts:
[Moreover,] [t]here is an objective way in which the balance of hardships tilts heavily in favor of petitioner. Couples who obtain their cake from another baker still get to live their own lives by their own values. They will still celebrate their wedding, still love each other, still be married, and still have their occupations or professions.Petitioner does not get to live his own life by his own values. He must repeatedly violate his conscience, making wedding cakes for every same-sex couple who asks, Pet. App. 57a, or he must abandon his occupation. The harm of regulation on the religious side is permanent loss of identity or permanent loss of occupation. This permanent harm is far greater than the one-time dignitary harm on the couple’s side.Forcing petitioner to choose between his business and his conscience is an historic means of religious persecution. [Discussing historical examples from religious-test statutes etc.]