Masterpiece Cakeshop ruling: When everything is a “sincere religious belief”

Last week’s Supreme Court ruling in favor of a homophobic Christian baker who refused to sell wedding cakes to same-sex couples is very disappointing, and not for the reasons you might think. This wasn’t a catastrophic blow against the LGBT community – instead, this is a ruling so narrow that it almost seems evasive. What it left in place isn’t all that great, and what it does address is concerning.

First, the good: The court’s opinion does recognize that such religious objections can conceivably be outweighed by the need for LGBT citizens to be served equally in the area of public commerce.

The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws.

Continued:

And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons.

While this recognition is significant and very important, what little time is spent on acknowledging LGBT people’s rights in such scenarios gives the impression that this is no more than lip service. Merely acknowledging that religious beliefs must be weighed against the need for LGBT people to be free from discrimination in an open market isn’t particularly helpful given that the court’s opinion entirely neglected to offer any useful guidance as to how such conflicts might be resolved.

Rather than engaging with the substantive issues of where religious objections must end and LGBT rights begin, the court’s opinion focused narrowly on the finding that the Colorado Civil Rights Commission showed “clear and impermissible hostility” toward the “sincere religious beliefs” of the homophobic Christian baker. In documenting this “hostility”, the court cited remarks on the Masterpiece Cakeshop case from a member of the commission:

“Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

The court’s opinion construed this statement as directly disparaging the baker’s religious beliefs, quote, “by describing it as despicable, and also by characterizing it as merely rhetorical – something insubstantial and even insincere.” According to the court, stating that religious grounds had been used to justify atrocities such as slavery and the holocaust, quote, “is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law”.

This only raises further questions: Would the court not have overturned the lower court’s ruling had the commissioner not made these remarks? Certainly officials will take this finding as cause to be more cautious in their language going forward so as not to offend the court’s delicate sensibilities. But is there any way in which officials can point out that religion has been used to defend the indefensible that wouldn’t run afoul of the court’s standards in this area? What kind of language might the court take umbrage at next time?

Embedded in this standard is an assumption that religion functions as an unalloyed good in society, and that government officials are obligated to act accordingly. But how would the court expect officials to regard a case where, for example, a business owner does forthrightly state that their faith entails the belief LGBT people should be routinely deprived of any and all services that are available to others? How could officials meaningfully address an instance where a religious business owner openly admits that, on the basis of their religion, they believe that LGBT people should be harmed? An assumption of good faith is a starting point that can be disproven by later conduct; it is not a perpetual mandate to be upheld even in the face of contrary evidence. There are no grounds for conceiving of religious faith as universally well-intentioned and compassionate – the desire to cause harm does not inherently fall outside the scope of religious views. Many conservative religious advocacy groups routinely call for disaffirming approaches and conversion therapy for LGBT people, something which is known to be harmful. Pastor Steven Anderson of Arizona’s Faithful Word Baptist Church infamously made an intercessory prayer for President Obama to die of brain cancer, and also voiced the belief that gay people should be executed by the state. In what way can agents of the government address cases of religious belief clearly being used as grounds to hurt others?

This is a significant issue given the court’s tacit acknowledgment that some exercises of religious belief by business owners could indeed place an unacceptable burden on LGBT people’s ability to participate as equals in the public sphere. How can officials articulate that fact in a way which is acceptable to the court?

The failure to address the limits of free exercise of religion in the context of nondiscrimination law is especially worrisome given just how broad the category of “sincere religious beliefs”  can be. An extensive body of case law has established that “religious belief” can encompass nearly anything, and the sincerity of such beliefs is something that courts may not question too closely.

To get a sense of just how expansive “religious belief” can be, just look at labor law under Title VII, which requires employers to make reasonable accommodations for the religious beliefs and practices of employees. Based on a 1965 ruling in which conscientious objectors sought an exemption from the draft, the Equal Employment Opportunity Commission’s compliance manual states that a belief is religious if it “occupies in the life of its possessor a place parallel to that filled by … God”. The manual notes that “religious belief” can consist of “beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others”. “Religion” can also include “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views”.

What does this look like in practice? Under these broad definitions of religion, veganism has been found to be a protected religious belief in some cases. Atheism has also been found to be a religion for these purposes. A claimed “Universal Belief System” followed only by an employee and his mother was found to be a religion. Membership in the KKK is not considered a religious belief – however, membership in the “World Church of the Creator”, a white supremacist group which reads the “White Man’s Bible”, is considered a religion. In one case, an employer was found to have discriminated against an airline worker who claimed that an accident on the job was unavoidable because of a dream his wife had. This, too, was considered a religious belief.

What about the sincerity with which someone holds a religious belief? This is an important question, because if someone does not actually hold a given belief, then their free exercise of religion is not being burdened or constrained at all. Courts do have a valid interest in judging the sincerity of a religious belief, given that some individuals may dishonestly claim to have certain beliefs for the purpose of receiving exemptions from the draft, gaining special accommodations in prison settings, engaging in the illicit trade of endangered animal products, consuming illegal drugs, and so on. Courts may examine whether an individual’s claims of religious belief may be motivated not by genuine faith but by nonreligious interests, such as simply wanting to consume drugs or engage in illicit trade of animal parts for its own sake. They may also look at an individual’s history of religious beliefs and practices, potentially revealing whether this contradicts their current claims of belief or was adopted only after the legal advantages of claiming a religious belief became apparent to them.

Yet there are very stringent limits on a court’s ability to inquire into the sincerity with which a religious belief is held. Many legal scholars, as well as Supreme Court justices, believe that courts have no business assessing the sincerity with which religious beliefs are held at all. In her dissent in Burwell v. Hobby Lobby, Justice Ruth Bader Ginsburg claimed there is an “overriding interest” in “keeping the courts ‘out of the business of evaluating’ … the sincerity with which an asserted religious belief is held”. As Nathan Chapman writes in the Washington Law Review, most scholars endorse Justice Robert Jackson’s dissent in United States v. Ballard, contending that it would be impossible to judge the sincerity of a person’s religious belief without in the process judging whether their religious belief is plausible or empirically inaccurate. The latter is considered universally impermissible under what’s called the “no-orthodoxy principle”, and if judgment of the sincerity of belief is inseparable from judgment of the validity of belief, then judgment of sincerity becomes impossible. As an appeals court stated in a 2014 Title VII religious accommodations case:

This court has cautioned that judicial inquiry into the sincerity of a person’s religious belief “must be handled with a light touch, or judicial shyness.” … “[E]xamin[ing] religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread.” … Indeed, “the sincerity of a plaintiff’s engagement in a particular religious practice is rarely challenged,” and “claims of sincere religious belief in a particular practice have been accepted on little more than the plaintiff’s credible assertions.”

One attorney in the area of labor law summarized this as follows: “The bottom line: If an employee says something is a religious belief, it is.”

All in all, nearly anything can be a “religious belief” under the law, and there can hardly be said to be a high bar for claimants to demonstrate that these beliefs are “sincere”. The expansiveness of “sincere religious belief” only underscores just how wide-ranging the potential conflict with nondiscrimination protections can be.

This conflict is hardly limited to the issue of finding a wedding cake. What about children of same-sex parents who could experience mistreatment from school faculty? What about trans people who could be denied emergency medical care on the basis of a provider’s anti-trans religious views? Since the court’s ruling, already a state lawmaker in South Dakota has stated that business owners should be permitted to engage in racial discrimination, and a teacher in Indiana has claimed that his rights were violated by being required to call transgender students by their name. Nondiscrimination protections for the LGBT community can hardly be said to be protections so long as they have a religious, moral, ethical, or “conscience-based” loophole big enough for vegans, atheists, racists and dream-prophets to drive a truck through. It’s one thing to acknowledge that the conflict exists and can potentially be resolved in favor of protecting LGBT people. It’s another to answer the more specific question: how? That is the answer the court neglected to provide here. ■