Jack Phillips, owner of Masterpiece Cakeshop. Photo: Alliance Defending Freedom
Weddings are kind of a big deal. What some have called the “wedding-industrial complex” seems to grow larger every year, and by some accounts, the average American wedding now costs over $25,000. So it is no surprise that wedding ceremonies themselves have become one of the first flashpoints to arise in the wake of Obergefell v. Hodges. Who has to participate? Who has to help celebrate? And when may the state employ its monopoly of force to require individuals to participate, even when they have conscientious religious objections? These questions are front and center in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and its companion (but not-yet-granted) case Arlene’s Flowers, Inc. v. Washington.
In answering these questions the Supreme Court does not write on a blank slate. In fact, there is a long and ignominious history in Anglo-American law of “tests” – requirements that an individual participate in or celebrate a particular ceremony as a condition of entry into certain offices or professions, with the goal of forcing compliance with a particular set of beliefs. For example, from the reign of Henry VIII until well after the Glorious Revolution, English law required national and municipal government officials, military officers, members of particular professions, and students at Cambridge and Oxford to take part in communion ceremonies celebrated by the Church of England, generally at least once a year. Unless these individuals went through with the ceremony and passed the “test,” they were debarred from these positions of prominence.
The Act of Supremacy, the Uniformity Act, the Test Acts and the Corporation Act targeted both Catholics and Nonconformists such as Presbyterians, Baptists, Quakers and Methodists. But they also (perhaps absent-mindedly) excluded other religious minorities in England, notably Jewish Britons. These acts were one of the reasons many religious minorities emigrated to the American colonies, where religious freedom in colonies such as Pennsylvania was far greater.
A related problem was presented by requirements to take part in public oath ceremonies. Oath ceremonies were a common feature of legal process, but were also used to further ideological conformity. Many religious dissenters could not take vows such as the Oath of Supremacy, which required recognition of the English monarch as supreme governor of the Church of England (as opposed to, for example, the pope). But some religious dissenters, and in particular the Quakers, could not take any oaths at all. (Quaker weddings do not include vows for this reason.) Under the Quaker Act of 1662, Quakers were frequently fined or jailed for refusing to take oaths.
It was against this well-known background of abuse that the Founders – inspired by English Whig political philosophy and with many religious dissenters among their number – adopted rules that prevented the use of ceremonies such as religious tests and oaths to exclude individuals from particular offices. With respect to oaths, by the time of the American Revolution many of the colonies had adopted accommodations for oath-taking, allowing religious dissenters to “affirm” instead. This solicitude towards religious dissenters is reflected throughout our Constitution – wherever an oath is required, an affirmation may be made instead.
Similarly, the Founders included within the Constitution Article VI, Section 3, variously called the “test clause” or the “no-religious-test clause.” It prevents the use of religious tests like those in England to prevent anyone from holding office under the United States.
Given this well-known history of rejecting requirements to participate in or otherwise celebrate ceremonies, it is not surprising that the Supreme Court has interpreted other provisions of the Constitution – including the ones now at issue in the religious-wedding-vendor cases – to prohibit forced participation in or celebration of particular ceremonies.
For example, in cases involving the religion clauses of the First Amendment, the Supreme Court has frequently rejected compelled participation. In West Virginia State Board of Education v. Barnette– which was brought under the free exercise clause – the court protected Jehovah’s Witnesses from being forced to salute the American flag and say the Pledge of Allegiance in school, while allowing school officials to conduct the pledge recitation with willing participants. In Girouard v. United States, a case concerning a conscientious objector to combat service, Justice William Douglas wrote for the court that “[t]he test oath is abhorrent to our tradition.” And in Torcaso v. Watkins, the court held that a state requirement to swear publicly to a belief in God in order to become a notary public violated the free exercise clause, rejecting “the historically and constitutionally discredited policy of probing religious beliefs by test oaths or limiting public offices to persons” with particular beliefs.
Similarly, under the establishment clause, the Supreme Court in Lee v. Weisman looked at “whether a religious exercise may be conducted at a graduation ceremony in circumstances where, as we have found, young graduates who object are induced to conform,” concluding that the inducement to conformity was problematic. The Lee court emphasized that government could not force an objecting student in the audience to “participate” in a ceremony – a rabbinical prayer – at her high school graduation.
The same principle is true of the Supreme Court’s free speech jurisprudence, which it described in Wooley v. Maynard: “A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts.” That guarantee extends not just to spoken words, but to expressive conduct, as in cases like Texas v. Johnson, in which the court protected the act of flag-burning. And the Wooley principle also protects an unwilling person from having to lend her property or space (Miami Herald v. Tornillo), or her money (Harris v. Quinn), to carry another’s expression. In the run-up to Obergefell, many of the lower courts (e.g., the U.S. Court of Appeals for the 9th Circuit in Kaahumanu v. Hawaii) recognized that wedding ceremonies are inherently highly expressive. It follows then that just as a state could not forbid bakers from baking cakes to celebrate same-sex wedding ceremonies, a state cannot force a baker to bake a cake in order to celebrate one.
Forcing an individual to participate in or celebrate a wedding ceremony also presents a problem under the due process clause. Loyalty oaths were very common during the McCarthy era and often tracked the kind of language required by the Act of Supremacy and the Quaker Act. But in cases like Wieman v. Updegraff, the Supreme Court rejected loyalty oaths, on the grounds that such an oath “offends due process” because it is “an assertion of arbitrary power.”
This concern is only heightened in the specific context of marriage. The Supreme Court has recognized in a line of cases – Griswold v. Connecticut, Planned Parenthood of Southeastern Pennsylvania v. Casey, Lawrence v. Texas – that marriage is one of the areas particularly protected under the due process clause. Obergefell likewise recognized that, for millions of people, marriage “is sacred” and forms “a keystone of our social order.” The court emphasized in Obergefell that because marriage is a deeply important and “transcendent” institution, individuals must remain free to make their own “personal choice[s]” about it, without government coercion.
The thread woven through these Supreme Court decisions is readily discernible: Government may not force individuals to participate in ceremonies to which they have a religious objection.
So where does this leave the wedding vendor litigation? First, and as we have suggested, the Supreme Court should strongly consider hearing the Arlene’s Flowers case in tandem with Masterpiece. The issues surrounding religious wedding-vendor litigation in the lower courts are complex and multifarious enough that hearing both cases will allow the court to address more of the spectrum of religious wedding-vendor cases, just as it has in recent years with other cases involving nationwide religious litigation.
Second, the Supreme Court should recognize that the state may not use its monopoly of force to require religious dissenters to take part in ceremonies in general and wedding ceremonies in particular. Government-forced participation in or celebration of particular ceremonies goes against the grain of our constitutional idea and violates several specific provisions of the Constitution.
Third, the Supreme Court should reiterate one of the main points of Obergefell: Dissent is not a bad thing. In Obergefell, the court held that the problem was not that there is a multiplicity of “good faith” views about marriage. Indeed, the court stated, “reasonable and sincere people here and throughout the world” believe in traditional marriage based on “decent and honorable” religious grounds and those beliefs are not “disparaged here.” Rather, the problem stemmed from the enshrining of a single view into law that can be used to “demean,” “stigmatize,” and exclude those who do not accept it, treating them as “outlaw[s]” and “outcast[s].” And just as James Obergefell should not be made an outcast for living out his understanding of marriage, religious wedding vendors should not be made outcasts for living out theirs. As our colleague, law professor Mark Rienzi, has put it, “dignity is a two-way street.”
The Supreme Court will have to deal with tougher cases that involve tricky balancing of the rights involved. But Masterpiece Cakeshop and Arlene’s Flowers are not those cases. The Supreme Court can call on history and precedent to resolve these cases so that LGBT customers can obtain wedding services from willing vendors, while religious dissenters are not forced to participate in or celebrate wedding ceremonies against the demands of conscience.
Eric Rassbach and Hannah Smith are deputy general counsel and senior counsel at the Becket Fund for Religious Liberty, which filed an amicus brief in support of the petitioners in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The views expressed here do not necessarily reflect those of the Becket Fund or its clients.