The Supreme Court finally acted on Monday on two closely watched cases about church-government relations and the right to carry a gun outside of a home. But only one case will be heard by the Justice next term.
The Court granted arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which is about if a state can constitutionally enforce its civil rights law against a bakery whose owner refused, for religious reasons, to make a cake for a same-sex couple’s wedding party.
The Justices also denied, with two objections, the case of Peruta v. California, which was about whether the Second Amendment’s “right to keep and bear arms” protects the carrying of a gun outside the home, even in a concealed way. Justice Clarence Thomas, joined by Justice Neil Gorsuch, disagreed with the Court’s denial of the Peruta case.
The Masterpiece Cakeshop petition was sent to the Court in July 2016 by attorneys representing Jack Phillips. Phillips and his wife own a business in Colorado, where as a cake artist Phillips designs cakes. Phillips declined to design a cake for a same-sex wedding party on religious grounds.
In state appeals court, the judges sided with the Colorado Rights Commission, agreeing that the business violated the Colorado Anti-Discrimination Act (or CADA) and it ordered the business to create same-sex marriage wedding cakes if it also created other wedding cakes.
Phillips argued that CADA should be interpreted to allow him to refuse to design the cake under the Constitution’s compelled speech and free exercise of religion doctrines. A Colorado Appeals Court disagreed, stating that Phillips’ cake designing was conduct and not free speech, and that the commission’s order didn’t violate the Constitution’s free exercise of religion clause.
The Colorado state supreme court didn’t accept Phillips’ appeal and his attorneys then petitioned the United States Supreme Court.
The Peruta case had been under consideration at multiple private conferences, like the Masterpiece case. The petitioners saw a broader Second Amendment issue at stake, and they point to conflicting rulings around the country about the “constitutional right to bear arms outside the home for self-defense in some manner.”
A divided Ninth Circuit Appeals Court, earlier meeting en banc in June 2016, upheld a decision by San Diego’s sheriff that the petitioners had to show “good cause” to carry concealed weapons in public places, citing the state’s gun laws.
That decision, said the Peruta legal team (led by veteran Court litigator Paul Clement), only added to the national debate about the issue. “In reaching that conclusion, the Ninth Circuit added to the sharp division among the lower courts over whether the Second Amendment allows ordinary, law-abiding citizens to be deprived of all means of carrying a handgun for self-defense,” Clement’s team argued in its petition to the Court, filed in January 2017.
The state of California didn’t want the Supreme Court to hear the appeal and it argued that the question actually before the Court is about “a specific right to carry a concealed handgun in public spaces in cities and towns, based only on a general desire for self-defense.”
“This Court has previously denied review in three cases assessing similar state regulations on public carry. There is no reason for a different result here, especially while other courts continue to consider comparable issues. In the continued absence of any conflict, review in this case would be at best premature,” the state argued.
In his dissent, Justice Thomas said, “For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.”
Scott Bomboy is the editor in chief of the National Constitution Center.
