Supreme Court Vacates Another Opinion Applying Antidiscrimination Laws to Religious Objectors
Legal Sidebari
Supreme Court Vacates Another Opinion
Applying Antidiscrimination Laws to
Religious Objectors
June 19, 2019
On June 17, 2019, in Klein v. Oregon Bureau of Labor & Industries, the Supreme Court vacated a state
court decision rejecting an Oregon bakery’s claim to a religious exemption from state antidiscrimination
laws. The bakery’s owners had refused to make a cake for a same-sex wedding. The state claims that this
refusal violated statutes barring discrimination of the basis of sexual orientation. The bakers responded by
arguing that the protections of the First Amendment’s Free Speech and Free Exercise Clauses limit the
reach of the state law. The facts of Klein echo the circumstances presented in 2018’s Masterpiece
Cakeshop v. Colorado Civil Rights Commission, in which a Colorado baker had similarly argued that
applying state antidiscrimination laws to compel him to make a cake for a same-sex wedding violated the
First Amendment. The Supreme Court apparently viewed the similarities between the cases as significant,
leading it to vacate Klein in a short per curiam order and remand the case to the state court with
instructions to reconsider its decision “in light of” Masterpiece Cakeshop. (This action is typically
referred to as a “grant, vacate, and remand order” or a “GVR.”) The Court took a similar action in 2018,
issuing an almost identical GVR in Washington v. Arlene’s Flowers, Inc., a case involving a florist who
raised religious objections to serving a same-sex couple. Following the Supreme Court’s remand, the state
court in Arlene’s Flowers issued its own decision on June 6, 2019, affirming its previous decision against
the florist. Although the Supreme Court has once again declined to resolve the competing claims
presented by these disputes between religious business owners and states seeking to enforce
antidiscrimination laws, it is likely that the Court will be presented with the issue again, through an appeal
of Arlene’s Flowers, Klein, or any number of similar cases. This Sidebar reviews the First Amendment
principles at issue in these disputes, then discusses Masterpiece Cakeshop, Arlene’s Flowers, and Klein.
Free Speech and Free Exercise Clauses of the First Amendment
Many of the plaintiffs raising religious objections to complying with state and local antidiscrimination
laws claim the protections of both the Free Speech and Free Exercise Clauses of the First Amendment.
With respect to the Free Speech Clause, they argue that their creative services—making cakes or floral
arrangements for a wedding, or photographing the event—are speech, and that by forcing them to provide
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these services for weddings, state governments are unlawfully compelling them to speak in support of
those weddings.
This Sidebar, however, primarily focuses on the free exercise claims raised by these litigants. Generally,
the First Amendment protects the “free exercise” of religion and prohibits governments from targeting
religious beliefs. However, in 1990 the Supreme Court clarified in Employment Division v. Smith that “the
right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral
law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes).” In so holding, the Smith Court recognized that it had previously “held that the
First Amendment bars application of a neutral, generally applicable law to religiously motivated action,”
but distinguished these prior cases, saying that they had not presented freestanding free exercise claims.
Instead, these cases involved “the Free Exercise Clause in conjunction with other constitutional
protections, such as freedom of speech and of the press.” Accordingly, as a key defense to free exercise
challenges, states seeking to force religious business owners to comply with state laws have argued that
the laws are “neutral” and “generally applicable” because they apply to the religious and non-religious
alike, and therefore do not violate the Free Exercise Clause under Smith. Nonetheless, the Court has
recognized that facially neutral laws may sometimes violate the First Amendment if there is other
evidence that the government is targeting religious conduct.
Masterpiece Cakeshop and Arlene’s Flowers
In its 2018 decision in Masterpiece Cakeshop, the Supreme Court sidestepped the question of whether the
Free Speech or Free Exercise Clauses may generally exempt religious business owners who object to
serving same-sex weddings from antidiscrimination laws. Instead, as described in this Sidebar, the Court
issued a relatively narrow decision tied to the facts of that particular case. Specifically, the Masterpiece
Cakeshop Court said that the state agency tasked with enforcing Colorado’s antidiscrimination provisions
had exhibited “clear and impermissible hostility” to the baker’s religious beliefs in adjudicating his claim,
pointing to several discrete comments in the record and apparent discrepancies in enforcement of the
antidiscrimination law. Consequently, the Court concluded that the state had not treated his case with “the
neutral and respectful consideration” that it deserved. Notwithstanding the fact-specific nature of the
decision, Justice Kennedy’s opinion for the Court did make some broad pronouncements regarding the
baker’s claims. In dicta, the Court noted that “religious and philosophical objections to gay marriage are
protected views and in some instances protected forms of expression”—but nonetheless emphasized that
“it is a general rule that such objections do not allow business owners . . . to deny protected persons equal
access to goods and services under a neutral and generally applicable public accommodations law.”
Because the Court resolved the case on free exercise grounds, it did not address the baker’s free speech
claims. Neither did it clarify whether the Free Exercise or Free Speech Clause could more broadly exempt
religious objectors from antidiscrimination laws.
After issuing Masterpiece Cakeshop, the Supreme Court entered a GVR in Arlene’s Flowers, remanding
the case for reconsideration in light of Masterpiece Cakeshop. In the Washington case, a florist had
appealed a state court decision ruling that she had violated state antidiscrimination laws and rejecting her
First Amendment defenses to those claims. On remand, the Washington Supreme Court interpreted the
Supreme Court’s instruction to reconsider the case relatively narrowly, adhering closely to the Court’s
biased-adjudicator rationale. The state court rejected what it characterized as the florist’s attempts “to
relitigate issues resolved in [its] first opinion,” which were, in the court’s view, “outside the scope of this
remand.” Instead, the court asked whether the state courts that adjudicated the florist’s claims had
exhibited hostility towards her religious beliefs. Reviewing the record before it, the Washington High
Court found no evidence that the state courts were impermissibly biased. Arlene’s Flowers submitted
additional evidence that it said showed that the attorney general, tasked with enforcing the state’s
antidiscrimination laws, had exhibited such bias. According to the florist, the attorney general had taken
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less extreme enforcement measures against a coffee shop owner who expelled a group of Christian
customers, apparently on the basis of the customers’ beliefs. The state court, however, said that this
evidence about the alleged bias of a party to the litigation was “irrelevant” to its consideration of the case
because Masterpiece Cakeshop required the adjudicator to be neutral and did not address the question of
prosecutorial discretion. The Washington court emphasized that the Supreme Court has long declined to
second-guess prosecutorial discretion in many contexts. The Court recognized that even after Masterpiece
Cakeshop, plaintiffs have to satisfy the same high standards to show that the government selectively
enforced a law in an unconstitutional manner. The florist’s attorneys have indicated that she will again
appeal this decision to the Supreme Court.
The Klein Appeal
In Klein, another bakery, owned by Melissa and Aaron Klein, declined to sell a custom-designed cake to
Rachel Cryer and Laurel Bowman for their wedding once the Kleins learned that the wedding would have
two brides, rather than a bride and a groom. Laurel and Rachel filed a complaint with the state agency
responsible for enforcing Oregon’s antidiscrimination law, the Bureau of Labor and Industries (BOLI).
BOLI ultimately concluded that the Kleins had violated state law by denying service on the basis of
sexual orientation, and a state court agreed with that decision.
On appeal to the U.S. Supreme Court, the Kleins raised First Amendment objections to the state’s
decision, arguing that compelling them to make a custom cake would violate their rights to free speech
and free exercise of religion. The Kleins also raised significant questions about Employment Division v.
Smith, first calling on the Court to overrule this decision entirely, but in the alternative, asking the Court
to “reaffirm” Smith’s statement that certain “hybrid” claims that combine both Free Exercise and Free
Speech claims should be evaluated differently from First Amendment claims involving free exercise
rights alone. Although the Kleins’ appeal was filed after the Supreme Court issued its decision in
Masterpiece Cakeshop, the petitioners did not argue that BOLI was biased against religion. They had
claimed in the lower court proceedings that one of the BOLI commissioners had prejudged their claim
and was impermissibly biased, but the state court rejected these claims, and the Kleins apparently did not
revive these claims on appeal.
Ultimately, the Supreme Court declined to take up this case, instead remanding Klein to the Oregon courts
for reconsideration in light of Masterpiece Cakeshop. It is possible that the Oregon courts could view this
remand as presenting a relatively narrow issue, as the Washington Supreme Court did in Arlene’s Flowers
when it reconsidered only the question of whether the state adjudicators exhibited hostility to religion.
This approach might allow the Kleins to revive their allegations of agency bias, although the state court
might also conclude that the Kleins waived their arguments on this point by failing to raise them before
the Supreme Court. Alternatively, the Oregon courts might view the remand as more broadly reopening
the issues presented in this case, given that the Court vacated the existing opinion in full.
Considerations for Congress
The Supreme Court’s GVR in Klein may reflect a reluctance to consider the broader issue of whether
business owners may raise religious objections to avoid complying with state antidiscrimination laws.
However, it seems likely that the Justices will be presented with the question again in future appeals, in
Arlene’s Flowers or another case. The service providers in Masterpiece Cakeshop and Arlene’s Flowers
were represented by the same legal organization, which also represents a number of other litigants in
similar cases and has demonstrated a commitment to appealing these cases to the Supreme Court. There
are also other types of cases involving religious objections to complying with state and local
antidiscrimination laws percolating in the lower courts. For example, a few adoption and foster care
agencies have raised religious objections to laws that would require them to place children with same-sex
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couples and unmarried adults. At least two federal courts have rejected these First Amendment claims,
concluding that localities can require these agencies to comply with antidiscrimination provisions.
These disputes over the application of state laws may hold significant implications for federal
antidiscrimination laws, particularly as Congress considers H.R. 5, the Equality Act, which would add
sexual orientation as a protected class under federal law. In addition, the Supreme Court has agreed to
hear two cases next term that ask whether the provision of Title VII of the Civil Rights Act of 1964 that
prohibits employers from discriminating on the basis of “sex” also encompasses sexual orientation. If the
Court rules that Title VII protects employees from discrimination on the basis of sexual orientation, these
cases about same-sex couples may set the stage for further litigation in the employment sphere: religious
business owners may protest the application of federal law to religiously motivated firings or other
adverse employment actions. (Title VII essentially allows some religious entities to discriminate on the
basis of religion, but this likely would not cover all religiously motivated employment actions on the basis
of sexual orientation.)
Given that the Court has declined to take up these broader questions, Congress could clarify this issue, at
least for purposes of federal statutory regimes, by enacting legislation that either prevents or expressly
allows such religious objections to antidiscrimination laws. For example, 2018’s First Amendment
Defense Act would have provided that the federal government cannot “take any discriminatory action
against a person” because that person believes that marriage should be only between “one man and one
woman.” By contrast, this term’s Equality Act would expressly provide that litigants could not invoke the
Religious Freedom Restoration Act, which limits the federal government’s ability to burden a person’s
religious exercise, to challenge the enforcement of the federal Civil Rights Act. Any such legislation
would have to comply with constitutional principles.
Author Information
Valerie C. Brannon
Legislative Attorney
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