If the baker wins Supreme Court wedding cake case, will faith-based discrimination be legal?

The unfortunate collision of church and state continues in the United States, a development that will eventually threaten both the free exercise of religion and respect for the rule of law.

The latest chapter came Tuesday, when the Supreme Court heard arguments in a case involving a baker in Colorado who refused to create a cake for a same-sex wedding. The baker, Jack Phillips, says requiring the sale violates his religious and speech rights; the couple says denying the sale is illegal discrimination.

By all accounts, it’s a close call. But given recent court decisions — and the political make-up of the court — the baker may well prevail.

America will almost certainly regret it. The decision will prompt a deluge of discrimination and free-speech cases, all aimed at redefining the increasingly blurred line between secular life and the world of faith.

If we change the facts just a little bit, we can see the thicket the court will confront. Let’s say a Muslim couple walks into a shop and asks for a wedding cake. Could a Christian baker deny the sale, claiming a faith exemption? If the baker wins the Colorado case, the answer would likely be yes.

Could a Jewish baker refuse a Christian customer on a similar basis? Could an African-American baker discriminate? A Caucasian? A Democrat, or a Republican? A Catholic? An atheist?

All would be entitled to discriminate based on a sincere religious belief if Phillips prevails.

The issue extends beyond bakers, of course. Restaurants might claim a First Amendment protection for an “artistic” menu and discriminate against same-sex partners — or anyone. Artisans and retailers would have similar rights, based on a First Amendment free-speech claim.

“An orchestra engages in speech at every symphonic performance, but ... has no constitutionally protected right to refuse to hire female percussionists,” noted First Amendment lawyer Floyd Abrams argues in a friend-of-the-court brief in the Colorado case.

If the baker wins, he and others suggest, all faith-based discrimination is legal.

Supporters of the Colorado baker dismiss these hypothetical concerns as “slippery slope” arguments — everyone knows the difference, they claim, between selling a wedding cake to a gay couple and selling one to a Muslim.

But they’re never able, somehow, to explain exactly what that difference is.

That’s why there’s so much at stake in Colorado, much as there was in the Hobby Lobby case in 2014. In that case, the Supreme Court said religious belief trumps secular health law.

Now the justices may decide religious belief trumps secular discrimination law.

It isn’t hard to see where this might lead. It would subject every law to a religious test, not by the government but by each individual. That could lead to a country in which secular laws become mere guidelines, bending to the whims of belief.

The Supreme Court recognized the danger in 1878. “Government could exist only in name under such circumstances,” it said.

Faith arguments are ascendant in America. Just this year, the Supreme Court said a Missouri church has a right to participate in a secular safety program. The just-passed House tax bill would repeal the ban on church participation in candidate elections, turning the pulpit into a political podium.

The Senate tax bill would let parents use tax-advantaged savings to pay for K-12 education in religious and private schools. And so on.

The blending of church and state may seem comforting to some and trivial to others. That same-sex couple just needs to find another bakery, they claim, as if discrimination were a mere inconvenience. It’s the segregated lunch counter all over again.

Some faith-based groups have backed the Colorado baker by pointing to the part of the First Amendment that guarantees free exercise of religion.

They often leave out the other part — the part that forbids a state establishment of religion. Tuesday, the Supreme Court may have edged closer to a church-state fusion, a development that should concern us all.

This story was originally published December 5, 2017 at 6:16 PM with the headline "If the baker wins Supreme Court wedding cake case, will faith-based discrimination be legal?."