Christian businesses may get Supreme protection

(Image courtesy Pixabay)

It seems wedding cakes are a political force like few other inanimate objects.

After ruling Colorado officials showed unconstitutional hostility toward a Christian baker's faith for refusing to create a wedding cake for a same-sex couple, the U.S Supreme Court is poised to consider another cake case.

In the Colorado complaint, the court did not explicitly rule that the religious expression of Jack Phillips of Masterpiece Cakeshop is protected by the First Amendment.

Now, a second case is poised to give the justices an opportunity to resolve that issue.

It is the case against the state of Oregon brought by Aaron and Melissa Klein.

The justices could decide whether or not to accept the case as early as Monday.

Lawyers for First Liberty Institute filed a petition on behalf of the Kleins asking for a review and reversal of the state's $135,000 penalty, which put them out of business.

"Freedom of speech has always included the freedom not to speak the government's message," said First Liberty President Kelly Shackelford. "This case can clarify whether speech is truly free if it is government mandated."

In the Klein case, "the court has the opportunity to resolve perhaps the most critical issue the Masterpiece court left unresolved: whether the government can compel citizens to create a message contrary to their religious beliefs," the legal team said.

The Bureau of Labor and Industries in Oregon found that the Kleins violated Oregon's public accommodations statute when they declined to design and create a wedding cake celebrating a same-sex marriage.

Aaron and Melissa Kleins' bakery before they were forced out of business

An analysis in the Los Angeles Times explained the court is being asked to overrule a 1990 ruling that religious rights do not trump "neutral" laws.

In the 1990 case, two Native Americans were penalized for smoking peyote as part of a religious ceremony. The Supreme Court affirmed the punishment.

Now at issue is the requirement by nearly two dozen states that anyone in business treat the promotion of same-sex marriage like any other piece of work.

Along with wedding cake creators, lawsuits have been filed by calligraphers, photographers and venue owners.

"The Kleins' appeal says the court should carve out an exemption for those who refuse 'to participate in same-sex marriage rituals that violate their sincerely held religious beliefs,'" the Times analysis said.

It also quotes from the high court's decision that created -- with no basis in the Constitution, according to the chief justice -- a right to same-sex marriage.

The 2015 ruling specifically protected the religious rights of those who object to same-sex marriage as being a violation of their faith.

In his dissenting opinion, Chief Justice John Roberts wrote: "Today's decision creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is – unlike the right imagined by the majority – actually spelled out in the Constitution. Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage."

In the Colorado case, the justices rebuked the Colorado Civil Rights Commission because the "the record here demonstrates that the commission’s consideration of Phillips' case was neither tolerant nor respectful of his religious beliefs."

Colorado not only ordered Phillips to make cakes for same-sex couples, it required him to undergo a reindoctrination program.

"The commission's treatment of Phillips' case … showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the commission's formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillip's faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust," the U.S. Supreme Court said.

"No commissioners objected to the comments," the ruling noted.

'Outright attack'

In the Oregon case there were similar elements.

Court records said then-Labor Commissioner Brad Avakian "made numerous public comments on social media and in media interviews revealing his intent to rule against them."

"He stated that the Kleins had 'disobey[ed]' Oregon law and needed to be 'rehabilitate[d].'"

WND reported evangelist Franklin Graham commented on the state's antagonism toward the Kleins in the Oregon case.

On Facebook, he wrote: "This is unbelievable! ... Brad Avakian, Oregon’s Bureau of Labor & Industries Commissioner, upheld [the previous] ruling that the Kleins have to pay the lesbian couple $135,000 for a long list of alleged damages including: 'acute loss of confidence,' 'high blood pressure,' 'impaired digestion,' 'loss of appetite,' 'migraine headaches,' 'pale and sick at home after work,' 'resumption of smoking habit,' 'weight gain,' and 'worry.' Give me a break. In my opinion, this couple should pay the Kleins $135,000 for all they’ve been through!"

Graham, the CEO of Samaritan's Purse and the Billy Graham Association, said even "more outrageous is that Avakian has also now ordered the Kleins to 'cease and desist' from speaking publicly about not wanting to bake cakes for same-sex weddings based on their Christian beliefs.'

"This is an outright attack on their ‪#‎freedomofspeech‬. A senior attorney with The Heritage Foundation was absolutely right when he said, 'It is exactly this kind of oppressive persecution by government officials that led the pilgrims to America.'"

The case focused on alleged "insults" suffered in 2013 when Rachel and Laurel Bowman-Cryer were preparing to marry.

After the Kleins declined to make them a cake, citing religoius beliefs, the women immediately complained to the state. They eventually were awarded $75,000 and $60,000 because their feelings were hurt.

Entrapment?

A third high-profile wedding cake case has developed in California.

Lawyers representing California Christian cake artist Cathy Miller have charged that the two women who demanded a cake from her were wearing a recording device. The women, the lawyers contend, were going from business to business to trap someone so they could then sue.

The state now has sued Miller twice over the same incident. In the first case, a judge ruled Miller's refusal was protected by the First Amendment.

Freedoms of expression and conscience

WND reported that the majority opinion creating gay marriage said, "The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered."

Some experts have argued the ruling adds a new layer of protection for religious rights in the U.S.

They have written, "State action must not require or compel a citizen to facilitate, participate in, or provide services which are contrary to 1) a person's self-identity rights secured by the 14th Amendment, or 2) their freedoms of expression and religious conscience protected by the 1st Amendment."

They explained: "To be sure, the Obergefell decision stated that for some individuals 'personal identity' may come from a person's intimate sexual orientation and the court then ruled accordingly. The court's ruling clearly comprehends that an individual's 'personal identity' could come from the person's intimate religious faith orientation, i.e., his or her 'beliefs.'"

That means the court "determined that this new fundamental constitutional liberty right of personal identity is found in, and protected by, the Due Process and Equal Protection Clauses of the 14th Amendment to the United States Constitution."