Most Mondays in June, you’ll find me in my CAP office at 7:00 a.m. on the SCOTUS blog website awaiting U.S. Supreme Court decisions. That’s where I was when the Court issued its Masterpiece Cakeshop decision. Upon seeing the 7-2 decision in favor of Colorado cake artist Jack Phillips, I yelled out a happy cry!
Then, yesterday while enjoying our beautiful state on a drive to Flagstaff, the Arizona Court of Appeals, Division One, issued its decision against Brush & Nib. The state appellate court ruled against artistic freedom and religious freedom. No happy cry yelled out.
Brush & Nib:
You will recall that the City of Phoenix passed a so-called nondiscrimination ordinance prohibiting discrimination against individuals on the basis of sexual orientation or gender identity. It’s the same type of law used to go after Jack Phillips. Brush & Nib, a business owned and operated by two artists in Phoenix, designs wedding invitations and other goods. The artists believe that marriage is only the union of one man and one woman. If they decline to use their creative talents to design wedding invitations for a same-sex wedding, the City of Phoenix could fine them $2500 per day and impose a jail sentence of up to six months.
Both Jack Phillips and Brush & Nib are represented by our friends at Alliance Defending Freedom (ADF). In response to the Arizona decision, Alliance Defending Freedom Senior Counsel Jonathan Scruggs, director of the ADF Center for Conscience Initiatives, issued the following statement:
“Artists shouldn’t be forced under threat of fines and jail time to create artwork contrary to their core convictions. The court’s decision allows the government to compel two artists who happily serve everyone to convey a message about marriage they disagree with. This contradicts basic freedoms our nation has always cherished. In Monday’s Masterpiece Cakeshop decision, the Supreme Court reaffirmed that ‘religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.’ Phoenix’s position contradicts this principle and violates our clients’ artistic and religious freedom. We intend to appeal the court’s decision.”
Thankfully, the final word has yet to be written on Brush & Nib. For now, I’ll leave my comments about the court’s decision at that.
Now back to Masterpiece Cakeshop:
The two concurrences written by Justice Gorsuch and Justice Thomas provide much hope for the future.
As Justice Thomas wrote, “Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day.” Justice Gorsuch wrote, “Just as it is the ‘proudest boast of our free speech jurisprudence’ that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.”
CAP General Counsel and VP of Policy Michael Clark sees two ways the Masterpiece opinion provides significant protections for the free exercise of religion:
- The opinion establishes that people of faith appearing before a governmental body are entitled to a “neutral decisionmaker who gives full and fair consideration” to their religious objections. Religious beliefs, including those on sexuality and marriage, cannot be simply dismissed as offensive.
- Moreover, the Court was clear that the government cannot imply through laws, regulations, or actions that certain religious beliefs and persons are not fully welcome in the public square or commercial domain.
To those who say the 7-2 Masterpiece ruling was narrow, I say nonsense. The evidence that Jack Phillips’ religious freedom had been unconstitutionally denied was so great that the Court didn’t need to reach the free speech question.
As for next steps, celebrate this week’s victory in Masterpiece. Continue to pray that courts continue to uphold the intent of the First Amendment – that all would be free to exercise their beliefs.
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