The Supreme Court could soon deliberate on the issue of “religious freedom” once again.
Attorneys representing Aaron and Melissa Klein, the former owners of Sweetcakes by Melissa, filed a SCOTUS appeal on Monday after they were fined for turning away a lesbian couple. In 2013, Rachel and Laurel Bowman-Cryer requested a wedding cake for a tasting, but the Kleins declined on the basis of their Christian beliefs.
They were subsequently slapped with a $135,000 penalty from the Oregon Bureau of Labor and Industries for violating the state’s public accommodation laws, which ban discrimination on the basis of sexual orientation and gender identity.
The Oregon Court of Appeals subsequently upheld that decision, while the state’s Supreme Court declined to hear a court challenge to it.
But in a Monday petition, lawyers with the Texas-based firm First Liberty and Boyden Gray & Associates claimed the time is right for the nation’s highest bench to take up the Kleins’ case following its June ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission.
That 7-2 decision did not address whether people of faith have the right to deny service to LGBTQ people based on religion.
“This case is an ideal vehicle for this issue: It squarely presents the constitutional questions that the Court did not answer in Masterpiece Cakeshop, but without the factual uncertainties that beset that case,” attorneys representing the couple argued.
“Free Americans should not be compelled by the government to create a message that conflicts with their deepest convictions,” the firms concluded.
The Kleins’ legal challenge actually goes further than the case filed by Jack Phillips, the Colorado baker at the center of Masterpiece. Phillips, who was fined after turning away Charlie Craig and David Mullins in 2012, argued that being punished for his beliefs violates his First Amendment right to freedom of expression.
The Sweetcakes couple isn’t merely asking the Supreme Court to dismiss the fine against them, though. They’re seeking a broader license to discriminate.
The complainants are lobbying to overturn Employment Division, Department of Human Resources of Oregon v. Smith. In 1990, the court ruled that Oregon could deny unemployment benefits to Alfred Leo Smith and Galen Black, who were terminated for smoking peyote as part of a Native American religious ritual.
SCOTUS ruled states are not required to accommodate illegal activities motivated by faith, although they may choose to do so at their discretion.
“The Kleins sold only custom wedding cakes,” the Kleins’ legal team claimed. “[A]ny cake they designed and created for a same-sex wedding would have implicated their free speech and free exercise rights.”
It remains to be seen how a Supreme Court with Brett Kavanaugh on the bench would rule on “religious liberty” claims. Its verdict in Masterpiece was widely seen as a narrow ruling on whether the Colorado Human Rights Commission gave neutral consideration to Phillips’ faith beliefs in its deliberations.
SCOTUS found it did not, claiming the civil rights body’s decision illustrated prejudicial bias against religion.
Kavanaugh was appointed to fill the seat vacated by retiring Justice Anthony Kennedy, who often served as a liberal swing vote on divisive issues. Surveys of Kavanaugh’s legal history, though, show how not moderate his predecessor was: Judicial Common Space estimated he would fall to the right of every judge except Clarence Thomas.
But the newly appointed judge, who was accused by three women of sexual assault during his confirmation process, may not get the chance to weigh in yet.
The Supreme Court receives more than 7,000 petitions each year. Only one percent of those cases — around 80 — will actually be debated before the bench. An additional 50 challenges to the court are decided without oral arguments.
SCOTUS will have one month to respond to the petition. It may request a 30-day extension should the court need more time to decide whether to take up the case.
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