Warner said strong protections against compelled speech are vital.
“Imagine a world in which government could force a black cake artist to create a white-cross cake to celebrate white supremacy for the Aryan Nation Church just because she would create an identical-looking cake to celebrate a Lutheran church’s 50-year anniversary,” he said. “Or imagine the government forcing an LGBT filmmaker to create a documentary for the Catholic Church promoting traditional marriage. Or forcing a Muslim singer to perform in a Baptist church’s Easter program. No government should have that kind of power.”
“The same principle that protects Jack and the other creative professionals in the cases listed above is the same principle that protects those who vigorously disagree with them on life’s biggest issues,” said Warner.
He referred to a unanimous 1994 U.S. Supreme Court decision upholding the free speech rights of a veterans’ group that put on a St. Patrick’s Day parade authorized by the City of Boston. The parade organizers declined to allow a homosexual and bisexual group to march because they disagreed with the group’s message. The state Supreme Court had ordered the parade organizers to include the group because of a state law barring discrimination on the basis of sexual orientation, but this order was overturned.
“The U.S. Supreme Court refused to blur this message/status distinction nearly two decades ago in Hurley v. Irish American Gay, Lesbian, & Bisexual Group of Boston, holding that nondiscrimination laws cannot punish those who serve people from all backgrounds yet only decline to express certain messages. The study does not show that this decision had any adverse impact on culture,” said Warner.
“Many courts have recognized this message/status distinction since then—affirming the expressive freedom of wedding artists, photographers, and filmmakers,” he said.
Barak-Corren said her findings discredit “the argument that the effect of religious exemptions is negligible and that exemptions will not increase discrimination.” In her view, her results also “complicate the conventional portrait of religious objection as fixed and unyielding to change.” She said they show that people’s behavior is influenced by “signals from the government.” If the government creates exemptions, she said, people might start engaging in what she considers discrimination.
If exemptions do increase discrimination, she said, there are legal implications.
“Under the most demanding legal standard, the government must justify laws that substantially burden religion, by showing that the laws are the least restrictive means to achieve a compelling state interest,” she said. “If religious exemptions increase discrimination, as I have found, then enforcing anti-discrimination laws without exception may be the best way to promote equality, and perhaps the only way.”
Barak-Corren’s essay referenced a similar case regarding an adoption agency that “refuses to consider same-sex couples as prospective parents.”
She did not mention that the case concerns Catholic Social Services of the Archdiocese of Philadelphia, which was told by the City of Philadelphia that the city would no longer refer children to it.
The decision was due to the faith-based stance of the social services agency on marriage, even though there had been no claims of discrimination against same-sex couples brought against it. The city required the social services agency to agree to match children with same-sex couples.
Two foster mothers who worked with Catholic Social Services have sued the city, represented by the Becket legal group. The Supreme Court is expected to weigh in on their case, known as Fulton v. Philadelphia.
Barak-Corren’s Atlantic essay said her findings should “prompt the Supreme Court to proceed with great care as it sets to deciding the Philadelphia case and any future religion-equality conflicts.”
Even a narrow decision “might have a significant detrimental effect on the broader population that stands to lose from the exemption.” She argued the court has a duty to “avoid causing this harm.”
As CNA has previously reported, wealthy funders like the Ford Foundation and the Arcus Foundation have earmarked millions of dollars in grants targeting religious freedom protections that are obstacles to their vision of abortion and reproductive rights and LGBT political demands.
Some opponents of broad religious freedom protections have spent over $500,000 on advocacy and public relations campaigns related to the Masterpiece Cakeshop Supreme Court decision alone.
The Evelyn and Walter Haas Jr. Fund, a San Francisco-based private family foundation with half a billion dollars in assets, listed on its website multiple grants related to the case.