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What comes after the wedding cake case? Experts consider religious freedom's future

SALT LAKE CITY — Over the next few years, lawmakers will have to make difficult decisions affecting faith-based adoption agencies, religious student groups, transgender people and others. These efforts will only be successful if leaders embrace common-sense religious freedom protections and learn from past mistakes, according to top religious freedom advocates.

"Our experience with religious liberty laws shows us they need to be handled with finesse," said Tim Schultz, president of 1st Amendment Partnership. "In the wrong hands, these things can blow up unnecessarily."

Speaking at a private State Policy Network event on Oct. 11, Schultz and Montserrat Alvarado, executive director of The Becket Fund for Religious Liberty, explored opportunities for compromise created by recent Supreme Court cases and legislative trends, highlighting shared values that get overshadowed by polarization. After their presentation, both spoke with the Deseret News about what they wanted to impart to the mostly conservative and libertarian policymakers in attendance.

Montserrat Alvarado

The Becket Fund for Religious Liberty

Montserrat Alvarado

"We're making sure people check themselves in how they view these issues," Alvarado said. "We're living in the greatest country in the world because we have (religious freedom) rights. If you think about it from that perspective rather than going straight to conflict, you can build bridges."

This year's Supreme Court docket and next month's midterm elections will both likely create opportunities for more nuanced discussions on controversial topics, Schultz said.

"We're nearing a place — and we may already be there — where to meet the policy goals everybody says they want, it will require some dialogue with people who don't agree with you or come at these issues from a different direction," he said.

Reviewing the landscape

Alvarado and Schultz's session at the State Policy Network conference was titled "Religious Liberty in the States: What We Can Learn from Cakes, Playgrounds and Pregnancy Centers." The title referenced three high-profile Supreme Court cases from the past two years.

This case involved a Christian baker in Colorado who was penalized by the Colorado Civil Rights Commission for refusing to sell a custom wedding cake to a same-sex couple. In June, the Supreme Court ruled 7-2 that the commission was biased against the baker's religious beliefs that prevented him from making a cake celebrating a same-sex marriage. This decision was narrow in scope and didn't settle larger questions about what to do when religious freedom protections clash with nondiscrimination protections for the LGBTQ community in a business setting.

Supreme Court justices heard a California law requiring crisis pregnancy centers, which are often led or funded by faith-based organizations, to advertise abortion services available elsewhere. In June, the court ruled 5-4 that the law violated the centers' free speech rights. The First Amendment's free speech clause is becoming increasingly important in religious freedom cases, as the Deseret News reported this summer.

This 2017 case involved a public grant program in Missouri that promoted playground safety. A religiously affiliated preschool's application for funding from the program was rejected by the state because it did not want to inappropriately support religious programming. The Supreme Court ruled 7-2 that faith groups shouldn't be excluded from neutral funding programs.

Each of these rulings generated protests, claims that faith groups were getting special treatment from the government and lots of press coverage, which is why they were a good starting point for a discussion about religious liberty's current reputation, Schultz said. He and Alvarado addressed some of the key takeaways from these cases that may not be obvious to a general observer.

Tim Schultz

1st Amendment Partnership

Tim Schultz

"We wanted to use those cases as a jumping-off point to talk about legal challenges and opportunities now and what we think is coming in the future," he said.

One of the goals of the discussion was to remind lawmakers that the Supreme Court is generally supportive of religious Americans, Alvarado said. More liberal justices often join with conservatives to protect religious freedom, as they did in the Masterpiece Cakeshop and Trinity Lutheran rulings.

"I wanted to remind (policymakers) that these issues win at the Supreme Court without controversy," she said, noting that state legislators shouldn't let the threat of lawsuits keep them from protecting religious actors in the public square.

However, the presentation also addressed why it's valuable to craft balanced legislation that's less likely to lead to court battles, Schultz said. Lawsuits are a winner-take-all bargain that can be unsatisfying for everyone involved.

"If you have somebody you care about, would you want them to go through three years of litigation even if they win at the end?" he asked.

Jack Phillips, the Christian baker at the center of Masterpiece Cakeshop, is already back in court, because his victory in June didn't prevent future lawsuits. His situation illustrates the value of creating better, balanced laws even as you seek justice in the courtroom, Schultz said.

"If there is a silver lining in cases like Masterpiece, it's that they may cause people to realize their own winner-take-all strategy may not work out," he said.

Of course, compromise legislation is easier to talk about than enact. As the Deseret News reported after the Masterpiece Cakeshop ruling, LGBTQ rights advocates don't plan to put religious freedom ahead of their own legal rights.

“If there is a silver lining in cases like Masterpiece, it's that they may cause people to realize their own winner-take-all strategy may not work out.”

Tim Schultz, president of 1st Amendment Partnership

"When people ask, 'Hey, are you ready to compromise?,' what they're talking about is if we're ready to agree to religious exemptions in a civil rights law that only apply to discrimination against lesbian, gay, bisexual or transgender people," said James Esseks, an ACLU attorney who worked on the Masterpiece Cakeshop case. "There's no reason to think civil rights rules in any state should be different for LGBT people."

What's next?

Moving forward, state lawmakers need to proactively tackle policy concerns related to religious freedom, Schultz and Alvarado said, offering a few developments that may help make that possible.

First, political experts predict that next month's elections will shake up the partisan balance of some state legislatures and Congress. When power changes hands, some of the roadblocks preventing policy solutions disappear, Schultz said.

Politicians who "haven't had to think through their approach" to balancing religious freedom with other rights could now be forced to do so, he said.

Additionally, the list of potential cases before the Supreme Court this term does not include a lawsuit pitting religious actors against the LGBTQ community, like Masterpiece Cakeshop did. Instead, justices will likely consider less politically charged issues, like whether cross-shaped monuments can stand on public land.

The absence of a more controversial case gives organizations like Becket a chance to talk about the broader significance of religious freedom, Alvarado said.

"It's an opportunity to remind people that (clashing with the gay community) is not what religious freedom is about. It's about human dignity," she said.

That distinction will be important to keep in mind during future policy debates, Schultz said.

"Our rights tend to rise and fall together," he said. "A government that does not respect religious liberty is not going to respect other liberties."