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Too broad an exception from neutral, generally applicable law, and protections against discrimination vanish. Too narrow an exception and free exercise of religion protections vanish. What is clear is that these cases will continue to make their way through the lower courts with differing results until the Supreme Court makes a decision.  

Melissa and Aaron Klein owned a bakery, Sweetcakes by Melissa, in Oregon where they designed and created custom cakes. When a same-sex couple requested a wedding cake, they declined, citing their religious beliefs. The couple that requested the cake complained and the Oregon Bureau of Labor and Industries (“BOLI”) found that the Kleins had violated the state’s public accommodation law and ordered them to pay $135,000 in damages and the bakery went out of business.  The Oregon Court of Appeals affirmed the order and the Oregon Supreme Court denied review.

In October 2018, the Kleins asked the United States Supreme Court to hear the case, and to address several issues. First, the petition asks whether Oregon violated the Kleins’ free speech and free exercise of religion rights by requiring them to make a cake in violation of their sincerely held religious beliefs. Secondly, it asks whether the Court should over-ruled Employment Division v. Smith, 494 U.S. 872, which says that neutrally drafted laws that violate the free exercise of religion are permissible.  Finally, it asks whether the Court should simultaneously affirm Smith’s “hybrid rights doctrine” applying strict scrutiny to free exercise claims that implicate other fundamental rights.

In 1990, the Supreme Court ruled in Smith (the infamous peyote case) that if a governmental rule applies the same to everybody, then it is permissible even if it puts a "substantial burden" on the free exercise of religion.  The Smith decision, written by the late Justice Scalia, was unpopular and, in broad bipartisan action, Congress attempted to overturn it with the Religious Freedom Restoration Act (RFRA) in 1993. However, the Supreme Court ruled in 1997 that RFRA only applied to Federal actions, not state laws.

If RFRA, as signed into law by President Bill Clinton, were in place, the bakers would have an easy case for accommodation of their beliefs. However, because their free exercise of religion rights remain subject to a neutrally applicable anti-discrimination law that makes no provision for religious exemptions, they are subject to the state law.

The question raised in the case is asking the Court to consider their free speech rights and free exercise rights, but the underlying issue is the potential for undoing Smith which would provide religious accommodations.

While the religious rights of the Native Americans in Smith were understood and appreciated across the political spectrum, that case did not involve competing individual rights. Instead, it weighed the state’s interest in preventing illicit drug use against the right to engage in a relatively rare religious ritual.

The principles of the Klein case arose, in part, in the Masterpiece Cakeshop case last year but the Supreme Court was able to avoid a direct ruling on competing rights by arguing that the Colorado Civil Rights Commission had not taken the baker, Jack Phillip’s beliefs seriously and had in fact disparaged them.  The Court sent the case back to the lower courts. https://casetext.com/case/masterpiece-cakeshop-ltd-v-colo-civil-rights-commn-3

The Melissa’s Sweet Cakes case does not include, at this time, any evidence of such disparagement, and instead focuses on the applicability of the law itself to the facts.

In two recent cases, Supreme Court justices have expressed an interest in overturning Smith.  As Justice Alito, joined by three other justices noted in Kennedy v. Bremerton School District, No. 18-12 (S. Ct. Jan 22, 2019) (Alito, J., respecting denial of certiorari), Smith “drastically cut back on the protection provided by the Free Exercise Clause.”

The Kleins’ attorneys have argued that because this law burdens both free exercise and other constitutional rights, including free speech, there is a “hybrid rights doctrine” situation in which the neutral laws of general applicability governing free exercise cases should be subject to the strict scrutiny standard.

In response, Oregon has argued that Smith should remain in place, that there is no such thing as hybrid-rights, and that free speech rights are not implicated in this case since the Kleins refused to make any cake for the event, before they even got to the point of discussing what message the cake would bear.

Over the past few decades, the Court has been very reluctant to address the free exercise of religion squarely. Some believe that free exercise of religion only applies to participation in overtly religious acts, such as ritual, while others believe that free exercise of religion applies to almost everything a person of faith does.

Asserting religious accommodation rights can yield mixed results. In some cases, individual religious accommodation of employees is mandated, but in cases such as the bakers, religious accommodation is denied. In many jurisdictions, the rights to religious accommodation of individuals arise, ironically, from the same state laws that prohibit discrimination based on sexual identity. Do employees of a  bakery have greater accommodation rights than sole proprietors of identical businesses? Can an employee compelled by his or her employer to bake a cake in violation of their religious beliefs assert that they are being discriminated against? The result if an employer that happens to have a certain set of religious beliefs discriminates against an employee with whom the employer sincerely disapproves of on religious grounds mercifully remains a hypothetical, but it illustrates the prospective tangle of briars that the Court must navigate.

Too broad an exception from neutral, generally applicable law, and protections against discrimination vanish. Too narrow an exception and free exercise of religion protections vanish. What is clear is that these cases will continue to make their way through the lower courts with differing results until the Supreme Court makes a decision.

The Court is expected to decide whether to hear the case within the next few weeks.

 

Case:  Melissa Elaine Klein, et vir v. Oregon Bureau of Labor and Industries (No. 18-547) https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-547.html

 
 

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