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Supreme Court Brief: Religion Should Not be Used as a Sword to Discriminate

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On December 5, the U.S. Supreme Court will hear oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, yet another legal vehicle being used by the Religious Right to co-opt religious liberty and turn it into a license for anti-LGBTQ discrimination. According to a friend-of-the-court brief written and filed by People For the American Way Foundation, Americans United for Separation of Church and State, the Anti-Defamation League, and five other organizations, petitioners in the case misunderstand fundamental First Amendment protections. The brief notes that anti-discrimination laws protect religious freedom; they do not interfere with, impede, or frustrate the enjoyment of it. Our introduction follows below. Click here to download a PDF copy of the full brief. PFAW Foundation also supported the congressional brief in Masterpiece, and we discussed the case in our SCOTUS term preview.

Religious freedom is a constitutionally protected value of the highest order. The Free Exercise and Establishment Clauses work in tandem to secure the rights to believe, or not, and to worship, or not, according to the dictates of conscience. The guarantee of free exercise of religion is not, and never has been, a license to discriminate. “The First Amendment * * * gives no one the right to insist that in pursuit of [one’s] own interests others must conform their conduct to [one’s] own religious necessities.” Estate of Thornton v. Caldor, 472 U.S. 703, 710 (1985).

Yet petitioners ask this Court to grant them just such an impermissible license to discriminate. They claim entitlement to a constitutionally mandated exemption from a neutral, generally applicable law intended to protect minority and marginalized groups, so that they may legally refuse service to and exclude customers who do not conform to their religious views. The Free Exercise Clause grants no such right. And no assertion of any ‘hybrid’ claim changes that rule.

The Establishment Clause compels the same conclusion: It bars the granting of religious exemptions when the effect would be to impose undue costs, burdens, or harms on innocent third parties. Yet petitioners’ requested exemption from the Colorado Anti-Discrimination Act would do just that: It would confer on petitioners, and all commercial establishments, official permission to deny statutorily mandated equal service to anyone who does not live according to a business’s or its owner’s religious views. Such an exemption cannot be required by the Free Exercise Clause because granting it would violate the Establishment Clause.

Petitioners’ assertion of a free-exercise right to violate anti-discrimination laws also reflects a basic misunderstanding of the fundamental protections for religious freedom embodied in the First Amendment. Anti-discrimination laws protect religious freedom; they do not interfere with, impede, or frustrate the enjoyment of it.

Federal, state, and local public-accommodations laws like Colorado’s extend essential protections against discrimination to religious groups just as to other protected classes. They thus advance the aims of the Religion Clauses by ensuring that our Nation’s vibrant diversity of religion and belief does not divide and roil society. The laws ensure that a Muslim cannot be refused a meal by a Protestant restauranteur, a Catholic cannot be evicted by a Jewish landlord, and a Sikh cannot be fired by a Baptist supervisor for adhering to the ‘wrong’ faith.

If petitioners’ argument for a religious exemption from public-accommodations law were accepted, all those discriminatory acts might receive constitutional protection—not to mention imprimatur from, and hence encouragement by, this Court. The predictable consequence would be that persons of minority faiths, LGBTQ people, and other historically marginalized groups would have to choose between hiding their identity to conform to others’ religiously based expectations, on the one hand, and getting turned away from businesses open to the public, on the other. If religious freedom and equal justice under law mean anything, they surely mean that no one should be put to that choice.