Colorado Gay/Birthday & Hobby Lobby cases - Religious Freedom?
June 13, 2018 4:58 AM   Subscribe

Colorado Gay/Birthday case - Religious Freedom? or what? What was the "takeaway" from these decisions? What did they hinge on & what is the implication for future, similar cases?
posted by ebesan to Law & Government (3 answers total) 4 users marked this as a favorite
In the Colorado gay cake case, here's the analysis from SCOTUSBlog. Which, if I'm reading that plus some other analyses correctly, the conclusion from an actual law standpoint is that the SC basically kicked the can down the road on this one - the baker who refused to bake the cake "won", but only because a majority of the SC felt that the Colorado Civil Rights Commission was too actively hostile to religious beliefs, not neutral enough in their prosecution of the case. It was a "narrow" ruling that, supposedly, didn't resolve much of anything besides this one specific case, and shouldn't have much affect on similar cases. The general consensus seems to be that the issue of the possible conflict between civil rights and religious expression remains unresolved, and it's very likely that a similar case will make its way to the SC pretty soon.
posted by soundguy99 at 5:46 AM on June 13, 2018 [8 favorites]

As far as Hobby Lobby, I assume you're talking about Burwell vs. Hobby Lobby from 2014. Which by this point, considered from the more liberal side, was really less about religious freedom or religious expression and more the conservative justices taking a poke at ObamaCare and reaffirming their Citizens United position of corporate personhood. It was also supposedly a relatively "narrow" ruling that the majority claimed should only affect closely-held (aka privately owned) companies with regards to having to provide government-mandated services that conflicted with the owners' religious beliefs. The decision largely rested on the point that because the Dept. of Health and Human Services had created a process for non-profit religiously-affiliated corporations to exempt birth control from their coverage (and put responsibility for such coverage back on the government), for-profit corporations should also be allowed to use this process, as this was an already-existing "less restrictive" method.

AFAICT, so far the main affect of the Hobby Lobby decision (besides allowing certain companies to refuse to provide birth control as part of their insurance plans) was mostly to open the door for cases like the Colorado one. It's considered a "landmark" decision because it created a big loophole for for-profit corporations to claim religious exemptions to their compliance with laws, but exactly how that loophole gets applied in practice is something that will be argued about and worked out in courtrooms for years if not decades to come.
posted by soundguy99 at 6:41 AM on June 13, 2018 [1 favorite]

In the 'gay cake' case, the opinion is a pretty interesting read. SCotUS opinions are usually a lot more readable than people think. Basically, Kennedy write the opinion, saying that refusing to make the cake may have seemed "more reasonable at the time" as Colorado did not recognize gay marriage in 2012, and he makes it clear that he values anti-discrimination laws and does not want to create an outsized exemption to them that would result "in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations." But there was some 'anti-religious animus' shown to the baker at the lower levels of this decision, so the final call is to send it back to the beginning for a do-over.

Ginsburg and Sotomayor wrote a dissent saying that sure, not every part of the original case was perfect, but that there were plenty of layers of independent review so that shouldn't really matter.

Kagen and Breyer concurred with Kennedy's opinion, saying that some of the objections to the original case were overblown. (Notably, people tried to buy cakes with anti-gay messages and slurs on them and then filed complaints about bakers who refused. Kagen and Breyer specifically call out this false equivalency.)

Alito and Gorsuch wrote in specifically to endorse the equivalency of the anti-gay cakes and the wedding cake and using some weird logic ('He refused to sell a cake celebrating same-sex marriage to the couple's mother, so that means he doesn't offer that service to straight people either and that means it's not discrimination!' Kagen has a fun takedown of this in a footnote). Thomas writes that the act of baking is absolutely protected 1st amendment speech and needs absolute protection from coerced speech.

So, this case got a little messy. Everyone wanted to write in with their own interpretation. 3 concurrences is a lot, especially when two of them are directly at odds with each other. So they made the actual ruling as narrow as possible and left the hard choice for another day.

But the good news is that there are 5 justices signaling that they are in favor of gay couple in this case, they just want a cleaner vehicle for this ruling. Kennedy seems to think that these types of cases will become and since same-sex marriage is explicitly constitutional now, and that new cases will be a lot less favorable to bakers. The longer he waits on this the less resistance there will be and the less controversy it will stir up. Lets hope he's correct.
posted by Garm at 7:53 AM on June 13, 2018 [5 favorites]

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