If SCOTUS sides with baker, don’t fear flood of religious exceptions

Today the Supreme Court will consider whether a baker who refused to create a custom wedding cake for a same-sex marriage has the right to claim an exemption for his First Amendment rights. The case, Masterpiece Cakeshop, has spurred a contentious national debate. Many of those who oppose the baker have asserted that he is asking for a “get-out-of-the-law-free card” and others have warned the public that if the court rules in favor of the baker, similar religious claims will flood our court system.

Before rushing to conclusions, Americans would do well to remember an ugly period of world history. In 1935, as the Nazi party grew in Germany and tensions rose all over the world, a ten-year-old boy refused to participate in his school’s daily ritual of performing a salute to his country’s flag. When he did not participate, his teacher tried (unsuccessfully) to force his arm out of his pocket. Eventually, the boy was expelled for his resistance. Shortly afterwards, the grocery store run by his family was threatened with a mob attack and subjected to a boycott. 

The young boy at the center of this controversy, William Gobitis, did not live in pre-Nazi Germany, as one may assume. He lived in a small Pennsylvania coal town called Minersville. William and his older sister, Lillian, refused to perform the salute to the flag because, as Jehovah’s Witnesses, they believedthis was a form of idolatry. The Gobitis family turned to the courts for help, asking for a religious exemption from the flag salute law. This initiated a legal dispute that led to the infamous Supreme Court decision in Minersville School District v. Gobitis.

{mosads}The Court said that forced respect for the flag and“national unity” was more important than minority rights, and the court could not thwart the will of the majority. If the majority thinks forced respect for the flag is important, and if they have the votes to enforce that requirement by law, then the courts would offer no sanctuary to “dissidents.”  In other words, might makes right.

After the decision, it was effectively open season on Jehovah Witnesses. More cities and towns adopted flag-salute laws, which resulted in additional students being expelled from school. The FBI received reports of hundreds of anti-Witness violence cases, including attacks on Bible meetings, a mob burning a church to the ground, and in one case a child who was forced to drink castor oil and paraded through town. Worst of all, the Supreme Court’s decision seemed to give legitimacy to this persecution.

LISTEN: What happens if a baker is allowed to decide not to make a cake for a same-sex wedding? @WheelerLydia explains the legal outlines of tomorrow’s Supreme Court argumentation. https://t.co/a3eusF2hNz pic.twitter.com/rUAcDxvcCI

— The Hill (@thehill) December 5, 2017

Thankfully, three years later, the Supreme Court reversed course in, West Virginia State Board of Education v. Barnette, a case with facts almost identical to Gobitis. “Compulsory unification of opinion,” the Court said, was antithetical to First Amendment values. The Court concluded that it was unconstitutional to force objecting school children to salute the flag. Even if the majority has the votes to pass a law forcing people to respect and salute the flag, our Constitution protects the rights of the minority to disagree. This allows for a diverse society where we can live and let live with our differences. The principle appeared settled.

But in anticipation of the hot button Supreme Court case Masterpiece Cakeshop, many individuals have echoed the flawed might-makes-right reasoning of Gobitis, arguing that religious objectors are trying to avoid “play(ing) by the same rules as everyone else.” And others have raised concerns about sheer volume of these types of religious claims, arguing that allowing religious exemptions to generally applicable laws “would greatly increase the number of cases in which courts would have to answer (these) complicated questions.”

One major problem with these arguments is that they’re simply not correct.  A new study that I co-wrote that will be published in the Boston College Law Review shows that courts make exemptions from generally applicable laws all the time for other First Amendment rights, particularly in the context of expressive conduct. And we even think of exemptions as a modest and preferred way of protecting rights in other contexts.

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— The Hill (@thehill) December 4, 2017

For example, when the Supreme Court used speech protections to allow an individual to opt out of putting a state motto on his license plate that he disagreed with (even though the state license plate law was otherwise applicable), that was an exemption. And when the Supreme Court used speech protections to say that a criminal wiretapping act could not be enforced against a radio commentator who aired intercepted calls (even though the criminal wiretapping act was otherwise valid and applicable), that was also an exemption, too. And no one argued that these First Amendment objectors were not “play(ing) by the same rules as everyone else.”

Overall, the Boston College Law Review study reveals that religious objections requests remain much less likely to strike down government action than speech objections. Religious cases are far less voluminous by a ratio of at least 3:1. And even after Hobby Lobby, religious cases as a percentage of the total reported case load appear to have actually decreased.

Like Gobitis, the Masterpiece case is largely about trying to promote “compulsory unification of opinion” about the correct view of marriage. Will the Court follow the reasoning of Gobitis, and say that majority views win and minority groups have to get in line or be punished? Or will it take the more tolerant, inclusive, live-and-let-live approach of Barnette?

Hopefully this time, it won’t take years of violence and ostracization for the Supreme Court to recognize that live-and-let-live is not only better for our country, it’s required by the Constitution.

Stephanie Barclay is legal counsel at the Becket Fund for Religious Liberty. Barclay co-authored, with Mark Rienzi, “Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions,” in the Boston College Law Review.