by Leslie C. Griffin, William S. Boyd Professor of Law, University of Nevada, Las Vegas William S. Boyd School of Law
Many of us expected the Baker, Jack Phillips, to defeat the Same-Sex Couple, Charlie Craig and Dave Mullins, in the Supreme Court of the United States. The Baker refused to bake a marriage cake for the Couple because of his religious opposition to same-sex marriage. I thought it would be a Kennedy, 5-4 opinion, on free speech grounds. Instead, the Court, in an opinion by Kennedy, unfortunately ruled 7-2 in the Baker’s favor on free exercise of religion grounds.
The free exercise decision was surprising because the Free Exercise Clause requires everyone to obey neutral laws of general applicability. The sexual orientation anti-discrimination laws are neutral laws of general applicability. Both the Colorado Civil Rights Commission and the Colorado Court of Appeals so ruled. Nonetheless, Justice Kennedy wrote that the Commission had displayed religious hostility in its enforcement of those laws, and that the “neutral and respectful consideration to which Phillips was entitled was compromised.”