Slowly but surely, the cause of religious liberty keeps retaking ground it had previously lost.
Twice this week, defenders of our First Freedom had reason to take heart from mini victories of sorts. Both mini-victories came more in the form of attitudinal trend lines than in actual substance, but still they are worth a cheer and a half on the familiar scale of three.
The first three-quarter hurrah comes in response to a concurring “statement” issued by Supreme Court justice Brett Kavanaugh as the court rejected what some had hoped would be a religious liberty test case. The other three-quarters comes in the highly welcome news that Colorado finally will stop harassing its now-famous traditional values cake artist.
Kavanaugh’s statement, joined by justices Samuel Alito and Neil Gorsuch, amounts to a reference point for future First Amendment jurisprudence. The case arose when the New Jersey state Supreme Court ruled that a program in which Morris County, N.J., provides grants for historic preservation may not provide such grants for religious buildings. Churches sued, arguing that by specifically disadvantaging religious buildings, and (apparently) only religious buildings, from an otherwise generally available grant program, New Jersey is engaging in unconstitutional discrimination against religion.
The Supreme Court decided not to accept the case for review, an apparent loss for religious liberty. Kavanaugh’s statement, however, explains why it wasn’t really a defeat. This was not really a good test case, he said, because “the factual details of the Morris County program are not entirely clear. In particular, it is not evident precisely what kinds of buildings can be funded under the Morris County program. That factual uncertainty about the scope of the program could hamper our analysis of petitioners’ religious discrimination claim.”
In short, it wasn’t that the churches’ central argument had no merit, but instead that the justices are looking for a stronger, more factually clear case on which to rule.
The three justices made perfectly clear that if a test case involves a less factually ambiguous situation, they are willing to stop states from disadvantaging religious organizations. Indeed, Kavanaugh wrote that it is constitutionally a “bedrock principle” that “the government may not discriminate against religion.” Between the lines throughout Kavanaugh’s statement, it means this: The justices are sending an open invitation for a similar but factually clearer case, and suggesting such a case would be successful.
As for Colorado baker Jack Phillips, he had appeared already to have won the right for artists in some situations to withhold creative work from uses against which they hold sincere, faith-based objections. But after the Supreme Court ruled in his favor last summer, Colorado’s Civil Rights Commission tried an end-run around the court’s decision by charging him with yet another violation of its laws supposedly protecting sex-based discrimination.
In short, the commission still was trying to force Phillips out of business, claiming some distinction between the new case and the earlier one. Phillips sued the commission again, correctly noting that its new case, this time involving a transgender event rather than a homosexual wedding, involved only a distinction without a difference, and that the commission was on a “crusade to crush” him.
On March 5, the commission, probably seeing that Phillips would again win in court, voted unanimously to withdraw its new case against him. As Phillips’ lawyer Kristen Waggoner correctly said, it was Phillips, not the commission, who was merely asking for “tolerance and respect for good-faith differences of opinion.”
Now the commission effectively has cried “uncle,” and will be chastened against bringing further such cases, lest they result in another Supreme Court loss. Good. As in the New Jersey case, American governments, both state and national, must never be openly hostile against religion.
