Religious Exemptions

  • June 5, 2018
    Guest Post

    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.”

  • June 5, 2018

    by Julie A. Werner-Simon, former federal prosecutor, 1986-2015

    Just in time for June nuptials, the U.S. Supreme Court on Monday, June 4, 2018 issued the long-awaited decision in Masterpiece Cakeshop Ltd v. Colorado Civil Rights Commission. Justice Anthony Kennedy authored the 7-2 opinion, which reversed the finding of discrimination against baker Jack Phillips made by the Colorado Civil Rights Commission and the Colorado Court of Appeals. In a fractured and narrowly tailored 58-page decision, the court decided the case not on freedom of speech-what-is-art grounds, but on the free exercise clause of the First Amendment.  What stands out about the decision is how unsatisfying it is. It’s not the full meal expected after the December 5, 2017 oral argument when the justices sought to distinguish off-the-shelf cake from made-to-order confections, or the artistic merits of a made-at-the-table Mexican mole dish from that of any creation from any chef.  The decision is merely an amuse-bouche (those bite-sized hors-d'oeuvres) that does not rank as even an appetizer. 

    Kennedy’s narrow slicing in the Masterpiece Cake case is a win for the Colorado baker on procedural due process grounds but leaves to another day the question of what to do when the rights of religion and inclusion and fair treatment collide.

  • April 20, 2018
    Guest Post

    by Cynthia Romero, Director of Communications, Catholics for Choice

    On the heels of President Trump’s proclamation on Religious Freedom Day, the Department of Health and Human Services (HHS) issued a controversial rule on January 19 that allows healthcare providers to deny care to patients for religious, moral or any other reasons. The department also created a new Conscience and Religious Freedom Division within the Office of Civil Rights. These efforts are at the heart of a carefully crafted strategy by religious conservatives to radically redefine religious freedom and roll back progress on basic civil liberties— most notably a woman’s constitutional right to abortion and the rights of LGBT people.