Religious liberty battle still rages over gay marriage
WASHINGTON -- It's been nearly two years since the Supreme Court said gay and lesbian couples have the right to marry. What it didn't say was whether bakers, florists, printers and photographers could be forced to participate.
Now, it seems, the court may be tied in knots over the more mundane aspects of tying the knot.
For three months, through a dozen private conferences, the justices have had on their agenda the mysterious case of Jack Phillips, cake artist. The Colorado baker, owner of Masterpiece Cakeshop, refuses to perform his artistry for same-sex couples on religious grounds. For that, he has lost a series of challenges and has taken his case to the highest court in the land.
The justices could agree to hear him out. They could take a pass, as they did with a similar challenge from a New Mexico photography studio in 2014, when same-sex marriage was limited to some states. Or they could wait for new developments -- another case, perhaps, or even another justice. To date, they've kept mum.
“We’re in uncharted territory, and we just have to see how it plays out,” says Jeremy Tedesco, Phillips' lead counsel at the conservative Alliance Defending Freedom, which specializes in religious liberty issues. The delay, he says, "shows that the case is being taken seriously.”
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If the court was going to hear the case next term, it presumably would have decided that by now. It takes only four votes to do so -- but five to win. More likely is that the conservative justices aren't sure they can get those five votes, so they aren't taking the case -- but one or more of them is writing a dissent that could further illustrate deep divisions over religious freedom.
President Trump was elected with the support of religious believers who felt marginalized in recent years under both the Obama administration and the Supreme Court, which legalized same-sex marriage in 2015, struck down abortion restrictions in 2016 and has sought a compromise on Obamacare's mandated insurance coverage of birth control.
But the executive order on religious freedom that Trump signed last month didn't go as far as some wanted. In particular, it stopped short of providing exemptions from non-discrimination laws to individuals and organizations opposed to same-sex marriage, abortion and other rights.
Enter the Supreme Court, with newly minted Justice Neil Gorsuch filling the seat left vacant by the death of Justice Antonin Scalia last year. It has a 5-4 majority on most religious liberty issues -- but not when it comes to gay rights and abortion. In those cases, Justice Anthony Kennedy has sided with the court's four liberals.
"For the moment, this is all about Kennedy," says James Esseks, who directs the gay rights agenda for the American Civil Liberties Union. "It could be they're waiting for Kennedy to retire."
At 80, Kennedy is widely expected to retire in the near future -- but not necessarily this year. The court's other conservatives, led by Justice Samuel Alito, who has been most outspoken on religious liberty issues, might feel better about taking a same-sex wedding case if and when a more conservative replacement is confirmed.
They won't suffer for a lack of potential cases. Waiting behind Masterpiece Cakeshop is Arlene's Flowers, a Washington state florist owned by Barronelle Stutzman, who has employed and served gays and lesbians but refused to decorate a gay couple's ceremony. Additional cases could be headed toward the Supreme Court from Kentucky, Minnesota and elsewhere.
“That certainly raises the likelihood that the Supreme Court will make a decision to hear one of these cases in the future," says Sarah Warbelow, legal director at the Human Rights Campaign, the nation's largest gay rights organization. "But I don’t think it is necessary for them to do it.”
In his landmark opinion striking down state same-sex marriage bans, Kennedy appeared to leave the door open to challenges from those who object to participating in same-sex nuptials.
"It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned," he said.
States are almost equally divided between those that bar discrimination based on sexual orientation and those with laws protecting religious freedom. Most of the challenges from merchants opposed to working same-sex marriages have come in states with anti-discrimination laws, and most of those challengers have lost.
The Supreme Court has shown a reluctance to get involved in some recent cases testing the balance between civil rights and religion. Last June, the justices refused to review a Washington state rule requiring pharmacies to fill prescriptions, such as for contraceptives, regardless of religious objections.
That produced an angry dissent from Alito, who may be writing a similar dissent now, if the court has decided not to hear the Colorado case. "If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern," Alito wrote.
Since then, however, the addition of Gorsuch has given the court's conservative wing more clout, which in turn has given defenders of religious freedom hope that the court will tackle the issue Trump sidestepped in his executive order.
“There are questions about the continued vitality of First Amendment rights when it comes to the topic of marriage," Tedesco says. "Are we really free to disagree about this? The Supreme Court needs to answer that question.”
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