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Religious liberty setback at court may not be final

WASHINGTON (BP) — Religious liberty’s latest setback at the U.S. Supreme Court in its ongoing face-off with sexual liberty is disappointing but may not prove conclusive, Southern Baptist religious freedom advocates said.

The high court opted not to review a Hawaii Court of Appeals decision against a bed and breakfast that declined to rent a room to a same-sex couple. By their refusal, the justices permitted the lower court ruling to stand in their March 18 orders.

A lesbian couple brought suit against Phyllis Young, the owner of Aloha Bed & Breakfast, because she declined to rent a room to them and instead referred them to another establishment. Young, because of her Roman Catholic faith, refuses to rent the three other bedrooms of the house in which she lives to any couple other than a married man and woman.

A circuit court judge ruled that Young violated the state’s non-discrimination requirement by refusing the couple based on their sexual orientation, and a three-judge panel of the appeals court upheld the opinion. The appeals court ruled the bed and breakfast in Young’s home qualified as a public accommodation, like a hotel, and her right to exercise her religion freely under the First Amendment of the U.S. Constitution was not violated.

Russell Moore, president of the Ethics & Religious Liberty Commission (ERLC), said he was “disappointed” at the Supreme Court’s refusal to accept the appeal.

“At stake was the First Amendment rights of a retiree,” Moore told Baptist Press in written comments. “Even more, at question was the court’s commitment to religious liberty.”

The ERLC filed a friend-of-the-court brief in November requesting the Supreme Court review the appellate opinion and reverse it. The brief urged the justices to clarify the protections for religious liberty they appeared to espouse in previous decisions involving same-sex marriage.

“Our brief to the court pointed out that the opinions in both Obergefell and Masterpiece Cakeshop promised that religious liberty would be honored,” Moore said. “By refusing to take this case, the court decided not to elaborate on those promises. That’s regrettable.”

In the 2015 Obergefell v. Hodges opinion, the high court legalized same-sex marriage but said individuals and organizations would still be able to practice their religious beliefs regarding sexuality and marriage. The court ruled in a 2018 decision — Masterpiece Cakeshop v. Colorado Civil Rights Commission — that the state violated owner Jack Phillips’ religious free exercise in penalizing him for declining to design and decorate a cake for the wedding of two men.

Michael Whitehead — a Southern Baptist lawyer in suburban Kansas City, Mo., who filed the brief in collaboration with his son Jonathan — said they do not understand the denial of the appeal “to mean that a super-majority of justices believe non-discrimination laws will always trump religious freedom of business owners.”

“Five conservative justices will be looking for the right case to expand the victory for religious liberty in Masterpiece Cakeshop,” Michael Whitehead told BP in an email. “If there were not four votes to hear Aloha B&B, it only means that the conservatives believe this is not the best fact pattern to garner five or more votes for religious freedom. At the right time, the right facts will attract four votes to grant [review] and five votes to move the needle in favor of religious freedom.”

The lower court rulings show civil rights agencies and state courts “seem to be on a mission to force people of faith to violate their conscience or go out of business,” Whitehead said. “There is no middle ground for them, no tolerance of opposing moral views, even those based in historic Christian faith…. [T]he sexual revolutionaries allow no conscientious objectors. Everyone must bow the knee.”

The Christian Life Commission of the Missouri Baptist Convention and Freedom of Conscience Fund also signed to the brief.

The legal battle between religious liberty and sexual liberty has affected multiple individuals, businesses, institutions and ministries.

“Sexual orientation” and “gender identity,” or SOGI, policies and the categories’ inclusion in non-discrimination laws in some states have especially affected professionals who serve at weddings — such as cake designers, florists and photographers who disagree with same-sex marriage. Some have lost their businesses as a result of government rules.

In addition, adoption agencies, religious colleges, ministries for the needy, businesses and churches are among the organizations that have faced legal action for their commitment to marriage as a male-female institution, their determination to maintain policies in keeping with their beliefs and their willingness to protect privacy by preventing people of the opposite sex from using restrooms and locker rooms.

The Hawaii case began more than a decade ago when Taeko Bufford and Diane Cervelli — a lesbian couple living in California — requested a room from Young, but the bed-and-breakfast owner declined and referred them to another establishment after explaining the rules she has for her home, according to the brief filed by the ERLC and its allies. Young has required even her daughter to stay in a separate room from her cohabiting boyfriend when they come for a visit, the brief said.

The couple filed a complaint with the Hawaii Civil Rights Commission and ultimately filed suit, with the commission joining Bufford and Cervelli in the legal effort.

In its ruling, the intermediate court of appeals rejected Young’s contention that the bed and breakfast in her home qualified for a “Mrs. Murphy” exemption. The exemption permits the owner of a house in which she lives and that contains no more than four rental units to determine who stays with her.

The appeals court, however, ruled a “Mrs. Murphy” exemption did not apply because Young’s bed and breakfast served “transient guests” and therefore qualified as a hotel or other place of “public accommodation.” The exemption applies in state law only to longer-term arrangements in which there is a landlord-tenant relationship, the court said.

James Hochberg, Young’s lawyer, told WORLD Magazine that the appeals court “essentially rewrote the law and applied it retroactively to her. We now have a final decision that Phyllis Young’s house — in a subdivision with houses all around it, where the zoning does not permit hotels — is now a public accommodation under the law.”

Jonathan Whitehead also is a Southern Baptist and an ERLC trustee.