Two Issues, Two Answers: Time for SCOTUS to Make Some Hard Choices

The Supreme Court is facing two First Amendment issues, and we are at risk of having two different answers – ones that can only further confuse an already confusing selection of legal precedents.

One is Masterpiece Cakeshop v. Colorado Civil Rights Commission, which hinges on a privately owned business's ability to pick and choose its customers based on religious beliefs.  The other case is National Institute of Family and Life Advocates v. Xavier Becerra, which focuses on the rights of private, non-profit crisis pregnancy centers established by pro-life organizations and individuals to operate without being forced to advocate for abortion.

The issue with Masterpiece is challenging for a number of reasons. 

On the one side of the coin (setting aside the "protected" status of so-called marriage rights for same-sex couples, which has become a political third rail), there are the public accommodation laws that were passed, beginning in the '60s, to guarantee that hotels, restaurants, and other "public accommodations" could not legally discriminate against someone based on his race (in that case, almost exclusively black).  Public accommodation laws were unanimously upheld by the Supreme Court in Katzenbach v. McClung in 1964.  Those laws may have deprived some racist business owners of the right to practice their racism, but they extended a uniform right to all Americans, regardless of skin color, to have access to those public accommodations.

On the other side of the coin is the right, established by the courts when confronting demands stemming from Obamacare, of faith-based employers to refrain from offering insurance for services they find religiously unacceptable, such as abortion or birth control.  The Supreme Court upheld faith-based employers' rights not to offer such insurance in Burwell v. Hobby Lobby in 2014.

As a result, in considering the Colorado case, the Supreme Court sided with those advocating equal access for all to public accommodations, while also siding with those faith-based business owners who found conditions of Obamacare incompatible with their faith.  These two Court-defined rights truly represent a rock and a hard place.  A bakery is clearly analogous to the restaurants, which were specifically banned from discriminating against customers based on race, while the right to honor religious beliefs in the workplace was directly established in the Hobby Lobby case.  The issue may hinge on a simple, indisputable fact.  All black people are born that way – they have no choice in the matter.  However, all people who want to attempt to marry someone of the same sex are acting on a choice, not an immutable fact.  At issue will be whether the fact of this being a constitutionally protected lifestyle choice is more or less constitutionally protected than the fact of race being unchangeable and not subject to choice.

While some may argue that the wedding cake is "different" because there are always other cake-making choices available to same-sex couples, that argument was tried (and failed) in the public accommodations issues of the mid-'60s.  At that time, there were always some hotels and restaurants that would serve blacks, but the Court deemed this insufficient justification for other public accommodations to limit their service to whites.  This, along as the constitutional equivalence (if any) between innate race and human-choice sexual preference, is the issue the Court will have to decide.

The other case, National Institute of Family and Life Advocates v. Xavier Becerra, is even more complicated.  At issue is the right of those 200 or so generally faith-based crisis pregnancy centers in California to provide abortion-alternative counseling and support without also fulfilling a state mandate that they provide pro-abortion information.  The mandate comes from the California Reproductive FACT Act, which requires all crisis pregnancy centers to prominently post on their premises and in their advertising literature the following notice:

California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [phone number].

The law even specifies where these notices will be posted and the type size they must be printed in.  Specifically, this law was passed primarily or exclusively to require pro-life crisis pregnancy centers to advocate for something they passionately disagree with, even though those objections are, in most cases, based on clear religious beliefs.  The religious part of the issue here is at least as strong as the Hobby Lobby claim; however, these centers were created specifically to offer alternatives to abortion.  Such notices work directly at odds with the creation intent of the crisis pregnancy centers, an issue not germane to the Hobby Lobby issue, since Hobby Lobby was created not primarily to practice a religion-based activity.

The need for such a law seems based on the supposition that, absent this notice, none of the 700,000 women who become pregnant in California each year will know that abortion is an option.  It then goes farther, assuming that pregnant women don't know that abortion-related services are available at taxpayer expense by California's county social services organizations, as well as at low cost from such non-governmental groups as Planned Parenthood.  In short, the grounds for this law – other than the fact that pro-abortion zealots can't bear the fact that there even are other options – are specious.  It is quite literally inconceivable that any American woman might not know that abortion counseling and abortions themselves aren't readily available.  In short, the law is not necessary.

At issue before the court is the question of whether the religious rights of people and organizations who set up such pro-life pregnancy centers are more important than the state's power to force people to defy their own faith-based beliefs to serve a public communications need that is, in fact, no need at all, unless the Court presumes that there is a significant number of California women so ignorant of abortion that – unless told about abortion at a pro-life counseling center – they would never know about the availability of abortion-related services.

This should be clear-cut.  However, even pro-abortion justices have admitted that Roe v. Wade is remarkably flawed constitutional law, finding in the Constitution a privacy right that does not actually exist.  Given that precedent, it's really anybody's guess whether the clearly articulated right to the free exercise of religion will trump the made-up privacy right that has become the foundation of a host of other constitutionally specious laws.

For those who care about the primacy of constitutionally guaranteed religious freedom over lesser rights – especially those "discovered" by the Court or asserted by state governments – this latest session of the Supreme Court will prove a nail-biter.  Perhaps the worst possible outcome for those who value a clear affirmation of our promised right to the free exercise of religion would be a split decision, where the Colorado baker's rights are upheld because the courts differentiate between the rights of people of color (who are born that way) and people who exercise lifestyle choices, while on the other hand ruling that the discovered privacy right articulated in Roe v. Wade, as interpreted by California statute, trumps religious freedom.  Still, it is too early to give up on the hope that the Court will consistently find in favor of the rights of those who act based on deeply held religious convictions.