Bench Memos

Law & the Courts

The Supreme Court Has an Opportunity to Clarify Masterpiece

Jack Phillips at his Masterpiece Cakeshop business in Lakewood, Colo. (Reuters photo: Rick Wilking)

This week the U.S. Supreme Court declined to take up the case of Cervelli v. Aloha Bed & Breakfast, which some viewed as a follow-up to last year’s Masterpiece Cake Shop case.

In its decision in favor of Jack Phillips’s Masterpiece Cake Shop, the Court made it clear that the Colorado Civil Rights Commission was biased against the religious views of Mr. Phillips. While the decision reinforced the principle that government must not be hostile towards religion, it left many American business owners with more questions than answers — especially when art, expression, and speech intersect with daily commerce.

And in this context, ambiguity is the enemy of ordered liberty.

Fortunately, the case of Aaron and Melissa Klein — who are represented by my law firm, First Liberty — may present the Court with an opportunity to provide clarity and guidance to businesses, large and small, on the fundamental question of whether they may operate in accordance with deeply held convictions or be forced to abandon their First Amendment rights when they enter the marketplace.

The Kleins’ case does bear some striking resemblance to Masterpiece, but it is precisely the ways in which it differs that should compel the Court to hear it. Like Jack Phillips, the Kleins operated a small family business, Sweet Cakes by Melissa, that offered custom designed baked goods. However, every item sold by the Kleins was a custom design; there were no “off the shelf” cakes available.

Like Phillips, the Kleins, adhering to their religious views on marriage, politely declined to design a cake for a same-sex wedding even though they had done business with the family on other occasions.

When considering the complaint filed against the Kleins, government officials from the Oregon Bureau of Labor and Industries (BOLI) made statements disparaging the views of Aaron and Melissa much like the commissioners in Colorado made against Phillips.

But shockingly, Oregon went much further than Colorado. Oregon’s BOLI assessed a $135,000 penalty against the Kleins, essentially bankrupting their business, and ordered Aaron and Melissa not to publicly speak their beliefs on marriage. Jack Phillips is still in business; Aaron and Melissa Klein are not. The fate of Sweet Cakes by Melissa was directly attributable to government censorship of speech.

The Constitution protects all speech, popular or not, from condemnation by the government. The government may not bankrupt a business because the owners refuse to speak the government’s preferred message.

Justice Gorsuch put it best in his concurring opinion in Masterpiece: “It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.” Or as Justice Kennedy said in another recent case, “Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief.”

In many ways the American dream is the story of the entrepreneur. We tell our children that here in a free country, if you work hard, there is no limit to what you can achieve. Try telling that to the children of Aaron and Melissa Klein. The Kleins’ American dream was turned into a nightmare when the very government they trusted to protect their rights forced them to choose between speaking the government preferred message or losing everything they worked so hard to build.

Aaron and Melissa Klein, joined by millions of American business owners, are asking the Court, “Will government compelled speech be allowed to subvert freedom of expression and the free exercise of religion in America?”

For the sake of our republic, this is a question that must be answered.

Lathan Watts is director of legal communications for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all Americans, and a National Review Institute regional fellow.

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