The Masterpiece Cakeshop ruling by the U.S. Supreme Court that narrowly found in favor of Colorado baker Jack Phillips, who refuses to make wedding cakes for same-sex couples, left the Constitutional question at the center of the case untouched.
The Supreme Court ruled that the Colorado Civil Rights Commission did not give a fair hearing to Phillips’ claim that his rights to free speech and religious expression had been violated. As it took exception with the lower court’s decision making process, and not the ruling itself, the question of whether claims of “religious freedom” are enough to trump a right to non-discrimination are still unanswered.
While the Masterpiece Cakeshop case didn’t decide the fundamental issues at play in the case, same-sex adoption just might.
Nine states have laws allowing state-funded, religiously affiliated adoption agencies to refuse to place children with same-sex couples, including Kansas and Oklahoma, both of which passed laws this year; joining Alabama, Mississippi, Michigan, North Dakota, South Dakota, Texas, and Virginia.
When marriage equality came to the United States, agencies lost their built-in excuse for denying services, and now that there are legally recognized same-sex married couples so-called “religious freedom” laws have become the last hope to maintain policies that shut out gay and bisexual people.
Georgia also flirted with the idea, the Senate passing such legislation in February of this year that ultimately failed to progress.
Legal challenges are already underway. The ACLU filed suit in Michigan, and Lambda Legal is currently representing a couple in Texas in a federal case. Those cases could eventually find their way to the Supreme Court.
Meanwhile, a group of 80 Republican members of Congress have asked President Trump to use the powers of the executive branch to provide a sweeping, nationwide religious exemption to religiously affiliated agencies who wish to discriminate.
The question of where an individual’s right to free speech and the expression of their religion ends, and where another person’s right to not be discriminated against based on sexual orientation and gender identity begins appears destined to have its eventual day in the high court.
Until then, expect more “No Gays Allowed” signs, both figurative and literal.