The first basis for relief from the reach of the anti-discrimination laws is the claim that such laws violate the freedom of speech of the providers. At first blush, it may seem a stretch to regard baking a cake or arranging flowers as “speech.” However, federal Constitutional cases have long recognized that protecting speech is not limited to “the spoken or written word.” Engaging in conduct that expresses a point of view or idea is speech, and that expressive conduct is protected by the First Amendment.
Among recent actions by the U.S. Supreme Court, a four-sentence order may set the stage for the court to eventually address the collision between free speech and religious freedom on one hand and gay rights on the other. The order voided a judgment by the state of Oregon that had imposed a $135,000 fine on Portland-area bakery owners—the Kleins—for refusing to bake a wedding cake for a **** couple. Oregon maintained that its anti-discrimination law condemned such a rebuff even when the bakery owners’ religious convictions run counter to participating in a same-sex wedding.
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Besides vacating the fine, the court sent the case back to the Oregon Court of Appeals to be reconsidered in light of the Masterpiece Cakeshop decision. Masterpiece involved a similar situation in Colorado for Christian baker, Jack Phillips, when he refused, on religious grounds, to bake a wedding cake for a gay couple’s marriage. In Masterpiece, Colorado’s case against Phillips had relied on language in an earlier case, Employment Division v. Smith (1990), which said that religious liberty claims could not be used as a defense against “generally applicable” laws that were “neutrally” enforced. However, the Supreme Court found that the Colorado proceedings against Phillips were far from “neutral.” In fact, they were rife with religious hostility toward him. Besides that, the...
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