Can religious liberty coexist alongside modern anti-discrimination law? That’s the question the Supreme Court will consider next Tuesday when it hears oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission.
The case arose when Charlie Craig and David Mullins, a gay couple, walked into the Masterpiece Cakeshop in Lakewood, Colorado, owned by Jack Phillips, a devout Christian. As with all of his customers, Phillips had no problem with selling the couple anything on his shelves. But he declined to make a custom-made cake for their upcoming wedding, citing his religious convictions. And he was willing to direct them to nearby bakeries that would design their wedding cake, as he had with others.
That wasn’t good enough for Craig and Mullins. They filed a complaint with the Colorado Civil Rights Commission alleging that Phillips had violated the Colorado Anti-Discrimination Act. Finding in their favor, the commission ordered Phillips, among other things, to conduct comprehensive staff training, including for his family members who worked in the bakery – “reeducation,” in effect. The commission’s decision put Phillips to a choice: Ignore his religious beliefs, or go out of business.
After supporters of Craig and Mullins picketed the bakery, Phillips lost 40 percent of his business and most of his employees. He appealed, but like courts around the country that have decided similar complaints against bakers, florists, photographers, and others, Colorado’s Court of Appeals upheld the commission and the Colorado Supreme Court declined review. The U.S Supreme Court will now draw some lines, we hope.
A little history will put this case in perspective. Under common law, private parties were generally free to associate, or not, as they wished. There were exceptions, of course. Monopolies, common carriers, and public utilities had to serve everyone on reasonable terms. So also oftentimes for isolated public accommodations like inns and taverns. But service was generally not compelled where markets offered multiple choices, as here. In short, the presumption was on the side of freedom of association – and the implicit right to discriminate for any reason, good or bad, or no reason at all.
By contrast, public institutions, belonging to all of us, could not discriminate except on grounds related to their function. Slavery and Jim Crow made a mockery of that principle, of course. But when we decided finally to end segregation…