After the U.S. Supreme Court recently tossed out a lower court’s decision against our clients Aaron and Melissa Klein — who had been penalized $135,000 by Oregon bureaucrats for refusing to bake a cake with a message that violated their sincerely held religious convictions — one question predominates: Why didn’t the justices just decide the issue?
It’s a fair question and one to which only nine Americans truly know the answer — and they’re not telling. But, we can hazard a guess: State-sanctioned hostility to religion keeps getting in the way.
It helps if you understand what the justices actually did this week. The remedy they employed is called “GVR,” short for “grant, vacate, and remand.” That’s a victory — not just for Aaron and Melissa, but for religious liberty in general. It takes a majority of the Court — at least five justices — to vote in favor of this remedy. Thus, the Court granted the Kleins' appeal. In other words, the Kleins were entitled to at least some relief by the Court.
But there is more. The justices also vacated the decision by the Oregon Court of Appeals. Exactly what the justices disagreed with in that opinion (if anything), is unknown, but five justices said that it must be vacated.
It is in the remand that we get the clearest picture of the justices’ thinking. The Court sent the matter back to the Oregon Court of Appeals with instructions that the lower court apply last year’s decision, Masterpiece Cakeshop v. Colorado Civil Rights Commission.
That case stood for two basic propositions that we now understand extend well beyond the scope of Jack Phillips, the now-famous cakeshop owner at issue in the litigation. Masterpiece requires, first, that those like Jack, Aaron, Melissa, and others who are accused of discrimination are guaranteed a fair process. There is to be no prejudging of their case and no state bias against religion.
That should be assumed in our democracy; the accused deserve their day in court. Yet, the administrative proceedings that dominate these questions are often anything but fair. In Aaron and Melissa’s case, the commissioner of the Oregon Bureau of Labor and Industries (BOLI), said that his goal was that Aaron and Melissa be “rehabilitated.” Only the guilty are in need of rehabilitation. That’s unfair and a type of hostility toward religion that we can safely assume the U.S. Supreme Court repudiated in Masterpiece.
More than procedural fairness, Justice Anthony Kennedy’s Masterpiece opinion also insists that state officials show tolerance and respect for the religious beliefs of those accused of discrimination. Specifically, the Court in Masterpiece held that state officials who show hostility to the religious beliefs of those appearing in administrative hearings before them violate the U.S. Constitution.
As Justice Kennedy explained, quoting prior precedent, “The Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion.” In Masterpiece, the commissioners compared Jack Phillips to the Nazis and more. For Aaron and Melissa, BOLI imposed one of the largest penalties ever issued by the agency — $135,000. And that was for “emotional damages.”
But that’s not all. The BOLI commissioner imposed a gag order — something the First Amendment generally abhors — on Aaron and Melissa. According to the Oregon government, not only were the Kleins in need of the rehabilitation of their religious beliefs and penalized the cost of a new home in many American communities, they could not even discuss their situation in public.
In short, Aaron and Melissa were not afforded a fair process and the State of Oregon was hostile to their religious beliefs. So why didn’t the justices just decide the case and bring closure to their situation?
I think the answer might be a question of triage. The Court cannot get to the more consequential legal question until the bleeding stops. Here, the “bleeding” stems from state officials who deny a fair process to the accused and show contempt, as opposed to tolerance and neutrality, toward their religious beliefs.
As Justice Kennedy wrote, “It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate.”
The Court cannot reach the greater legal question because state officials, driven by the virtue signals of a progressive social justice culture, continue to prejudge guilt and show hostility toward religion in public. Stop the bleeding and the justices might be able to diagnose and treat the disease.
Make no mistake, the disease is in urgent need of treatment. Neutrality and tolerance, especially among these civil rights commissions, have greatly degraded to where it is fashionable — if not expected — for public officials to question whether religious beliefs have any place in the public square.
That is simply wrong. As Justice Neil Gorsuch wrote, concurring in Masterpiece, “The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.”