The Supreme Court appears reluctant to squarely address the balance between the free exercise of religion and anti-discrimination statutes, or to discuss a claim for hybrid-rights combining "rational basis" free exercise rights with "strict scrutiny" free speech rights.

Last year, recently retired Justice Anthony Kennedy wrote a narrow decision in Masterpiece Cakeshop finding that the Colorado Human Rights Commission had treated a baker's religious convictions with too much hostility. But the decision failed to resolve the primary issue of whether religious beliefs can be exempt from religiously neutral laws that apply to everyone.

Today, the Supreme Court issued a one-paragraph order throwing out a decision against the bakers in a similar Oregon case and sending it back to the lower courts for review in light of the Masterpiece Cakeshop decision. In this case, Klein v. Oregon Bureau of Labor and Industries, a couple that operated a bakery refused to provide a cake for a same-sex wedding in 2013 on the basis that the Kleins believed that marriage was limited to the union of a man and a woman.

The two women who sought their services filed a complaint with the state for discrimination, and the state fined the bakery $135,000, and the bakery went out of business. The Kleins asked the Supreme Court to hear the case, raising three issues, first whether Oregon had violated their free speech and free exercise of religion rights, secondly, whether the Supreme Court should overrule Employment Division v. Smith, and third, whether the Court should affirm the "hybrid-rights doctrine" in Smith by applying strict scrutiny to free exercise claims that implicate other rights such as free speech.

The third argument is quite daunting. In Smith, the 1990 "peyote" case, Justice Antonin Scalia had drafted the majority opinion finding that if there is a generally applicable law that does not single out a religion, it was good law even if it negatively impacted the religious practices of a minority. This decision made no room for considering individual exceptions to a general rule. In general, Smith stood for the concept that claims for religious exemptions should be vetted through a legislative process as opposed to the disarray that would result from "a system in which each conscience was a law unto itself."

Smith removed the highest "strict scrutiny," or "compelling interest" standard with the lowest "rational basis" standard for evaluating free exercise claims. Strict scrutiny was first applied to free exercise rights in the 1963 case of Sherbert v. Verner which involved a Seventh-day Adventist who had been denied unemployment benefits because she refused to work on Saturday, which was her Sabbath.

The hybrid-rights theory, which some refer to as a doctrine, attempts to apply the strict scrutiny standard to free exercise of religion claims if they are attached to a secular "constitutional protection" such as free speech. Courts have taken a variety of approaches to the application of hybrid rights, and some have denied its existence, but in general, religious liberty itself continues to receive a second-tier level of protection at best.

The politics and the ramifications of the Smith decision continue to vibrate, and the Supreme Court is extremely reluctant to address it again as the Klein litigants expressly requested, much less discuss how to develop a workable "hybrid rights" situation.

In asking the lower courts to consider Klein in light of Masterpiece Cakeshop, the Court is asking the lower courts to see if the religious beliefs of the bakers were treated seriously, or perhaps respectfully at the state administrative level. However, the blunt rule of the Smith case looks to the facts of the case as they line up with state anti-discrimination law; not whether the state treated the religion of the litigants with respect.

In the meantime, a new Colorado case (Autumn Scardina v. Masterpiece Cakeshop and Jack Phillips, complaint filed 6/5/2019) involving Jack Phillips and his Masterpiece Cakeshop is percolating through the lower courts in the form of a challenge brought by a prospective customer who requested a cake.



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