By Ryan Snow

Oral Argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission

On December 4, 2017, the U.S. Supreme Court heard oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Division, the case where Jack Phillips declined to create and design a custom wedding cake for a same-sex couple.

Jack Phillips’ Counsel and the Solicitor General faced tough questions from the liberal justices, the gist of them summarized as follows: “If Jack Phillips can deny service to a same-sex couple who wants a wedding cake, won’t that unleash a tidal wave of discrimination?”  Justice Kagan asked if a makeup artist could deny service to homosexuals using the same reasons Phillips argued as to why he should not be required to create a same-sex wedding cake.

Attorneys for the State of Colorado Civil Rights Commission and attorneys representing the same-sex couple faced difficult questions from Justice Kennedy—who will likely be the swing vote on the case—about whether the Colorado Civil Rights Division showed hostility to religion[1] in finding that Jack Phillips violated an anti-discrimination law.

There are several ways this case could turn out.  A decision on this case will likely come at the end of June 2018.

Supreme Court approves government funding of church projects

On June 26, 2017, the Supreme Court ruled in Trinity Lutheran Church v. Comer, 137 S.Ct. 2012 (2017), that Churches (and religious organizations) may not be excluded from competing for government grants.  A child Learning Center operated by the Trinity Lutheran Church in Missouri sought a government grant from the State to resurface a playground with material from recycled tires in 2012.  The Missouri government denied the grant to the Trinity Lutheran because it was religious.

In a 7 – 2 ruling for Trinity Lutheran, Chief Justice Roberts explained that Trinity Lutheran did not claim “entitlement to a subsidy.  It instead asserts a right to participate in a government benefit program without having to disavow its religious character.”  The majority opinion and two concurring opinions explained that excluding Trinity Lutheran from the government benefits program violated the Free Exercise Clause of the Constitution.

Two Justices, in dissent, saw the issue differently and argued that giving state funds to Trinity Lutheran violated the Establishment Clause.

President Trump’s immigration order challenged under the Establishment Clause

Litigation ensued immediately after President Trump issued his Executive Orders relating to immigration.  Popularly referred to as Trump’s “Muslim Ban,” various advocates filed suit against President Trump arguing that his Executive Order violated the First Amendment as it “exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity.”  Various Federal District Courts agreed that the Executive Order was unconstitutional. Trump's “Travel Bans” have been revised and reissued.

On June 26, 2017, the Supreme Court chimed in.  It did not reach the merits of the Establishment Clause and blocked enforcement of the Executive Order only for individuals that have a “bona fide” claim to a person or entity in the United States.

To date, the Supreme Court has not issued any opinion on the merits of any the Executive Orders, but on October 10, 2017, and on October 24, 2017, vacated lower court opinions blocking Trump’s Executive Order on mootness grounds.

The Johnson Amendment remains intact

In an Executive Order dated May 4, 2017, President Trump ordered the government to “respect and protect the freedom of persons and organizations to engage in religious and political speech.”  Through this Executive Order, President Trump sought to weaken the Johnson Amendment, which conditions tax-exempt status for 501(c)(3) non-profit organizations staying out of endorsing or opposing political candidates.  The Executive Order “underscore[d] the right of non-profit religious organizations to speak to the moral or political issues of the day without fear of losing their tax-exempt status.” 

Some groups like Alliance Defending Freedom contend that the Johnson Amendment is unconstitutional.  However, many faith groups support the Johnson Amendment and urged Congress to keep it intact.  The Johnson Amendment became a point of contention in Congress when the Tax Cuts and Jobs Act of 2017 was debated.  The House of Representatives voted to repeal it, but the Senate kept the Johnson Amendment.    Democrats were able to keep the Johnson Amendment in place by invoking the Byrd rule, which meant that at least 60 Senators had to agree to repeal the Johnson Amendment.  Because the Senate could not get to 60 votes to repeal the Johnson Amendment, it was dropped from the Tax Cuts and Jobs Act of 2017.

Supreme Court agrees to hear compelled speech case

In 1943 the Supreme Court ruled that West Virginia could not compel Jehovah’s Witness schoolchildren to salute the flag.  From this case grew the doctrine of “compelled speech,” that a government may not tell people what they must say.  However, in 2015 California enacted the “FACT act” which required certain medical facilities to post notices with statutorily prescribed language.

The Court grated certiorari in National Institute of Family and Life Advocates v. Becerra, which is brought by pro-life pregnancy service organizations opposed to providing pregnant women with information about abortion facilities.

While the case is largely a Free Speech case, it is also touches on Free Exercise issues given religious objections to the California law, which also requires people of faith to “supply contraceptives they believe work as abortifacients.” [2]


[1] See pages 293a – 294a of the hyperlinked document above for the quotation to which Justice Kennedy referred.

[2] See page 38 of the hyperlinked document.

Ryan Snow is a graduate of SMU Dedman School of Law and currently practices law in Texas.   He has volunteered with First Liberty Institute working on religious freedom litigation, and with the help of Texas Values, helped draft an amicus brief (as a law student) to the Fifth Circuit in defense of man-woman marriage on behalf of the U.S. Pastor Council and Coalition of African-American Pastors.  He writes a blog series with For Religious Freedom called: “Religious Freedom: What’s All the Fuss About?”


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