On Monday, June 4, 2018, the U.S. Supreme Court reversed in a 7–2 decision. Justice Kennedy wrote for the Court; only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. The Court did not reach the central issues of the case: Would it violate free exercise of religion or freedom of speech under the First Amendment to force Masterpiece Cakeshop to design and bake a cake for a same-sex wedding?
Instead, the Court found that the Colorado Civil Rights Commission had expressed impermissible hostility to religion and thus violated the free exercise clause of the First Amendment. Justice Kennedy wrote: “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”
It is important to look carefully at what the Court found to be sufficient evidence of hostility to religion. One commissioner at the meeting said, “Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’”
The Court especially focused on a statement made by a commissioner at a subsequent meeting: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
Justice Kennedy said that this was “disparaging” to religion and thus showed hostility. He wrote: “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects against discrimination on the basis of religion as well as sexual orientation.”
The Court also found hostility to religion because the Commission in other cases had rejected challenges to bakers who had refused to bake cakes with messages they found offensive. There is a great deal of discussion in the various opinions about these other instances and their significance.
The Court thus declared: “[T]he Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. In view of these factors, the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phillips’ religious beliefs.” The Court concluded: “The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.” Because the Court found that members of the Colorado Civil Rights Commission had expressed hostility to religion, it concluded that there was a violation of the Establishment Clause without the need to reach the questions that had been briefed and argued concerning whether it would violate the First Amendment’s speech or religion clauses to hold Phillips liable for his refusal to design and bake a cake for a same-sex wedding.
Was There Hostility to Religion?
In appraising the Court’s decision, the critical question is whether there was impermissible hostility to religion. As described above, the Court points to three pieces of evidence as demonstrating impermissible hostility to religion by the Colorado Civil Rights Commission. The first was the statement “Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’”
That, though, is not expressing animus to religion: It simply says that a business has to comply with the laws of the state and not discriminate. In fact, the Supreme Court in Employment Division v. Smith (1990) was explicit that free exercise of religion does not provide a basis for an exemption from a general law of a state, here an antidiscrimination law. To express the view that someone should not be able to inflict injury on others, here by discrimination, is not animus against religion.
The second piece of evidence of hostility to religion was the statement by a commissioner, “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
But the first sentence is factually sadly true: Religion has been used to justify discrimination, including slavery and the Holocaust. The second sentence is expressing an opinion that it is wrong to use religion as a basis for hurting others. That is not hostility to religion, but expressing the view that people should not be able to exercise their rights in a way that harms others.
Finally, the Court pointed to other cases where the Colorado Civil Rights Commission ruled in favor of bakers who refused to make cakes with specific messages. But those cases were clearly distinguishable because those bakers had not discriminated in a way that violates the Colorado law. The Colorado Anti-Discrimination Act makes it unlawful for a place of public accommodation to deny “the full and equal enjoyment” of goods and services to individuals based on certain characteristics, including sexual orientation. No one in the litigation disputed that Jack Phillips refused to bake a cake for Craig and Mullins because of their sexual orientation. By contrast, in the other cases, the bakers had refused to bake cakes with particular messages, but doing that did not violate the Colorado law because it did not involve discrimination based on race or sex or religion or sexual orientation.
The evidence of discriminatory animus against religion thus seems very week. It is ironic that this evidence was deemed sufficient to find a violation of the First Amendment, when in the travel ban case—Trump v. Hawaii—the Court found no constitutional violation notwithstanding Donald Trump’s repeated statements that he wanted a Muslim ban in immigration. During his presidential campaign, then-candidate Donald Trump pledged that, if elected, he would ban Muslims from entering the United States. Specifically, on December 7, 2015, he issued a formal statement “calling for a total and complete shutdown of Muslims entering the United States.” That statement remained on his campaign website until May 2017 (several months into his presidency). Trump repeatedly expressed his belief that “Islam hates us. . . . [W]e can’t allow people coming into this country who have this hatred of the United States . . . [a]nd of people that are not Muslim.” It is telling that the Court found religious animus in Masterpiece Cakeshop, but not the travel ban case.
The Underlying Unresolved Issues
The Court’s decision is narrow and leaves unresolved the key question of whether forcing businesses to provide services for gays and lesbians, or others, violates free exercise of religion or free speech rights of owners who wish to refuse to provide such services. The issue is sure to come up again, perhaps in cases involving florists who won’t make flower arrangements or photographers who won’t take pictures at same-sex weddings. Interestingly, the Court had the chance to take such a case after its decision in Masterpiece Cakeshop that involved a florist who refused to make flower arrangements for a same-sex wedding, but the Court remanded the case in light of Masterpiece Cakeshop. In Arlene’s Flowers v. Washington, the Washington State Supreme Court came to the same conclusion as the Colorado Civil Rights Commission and the Colorado Court of Appeals.
There were two questions presented in Masterpiece Cakeshop that were not resolved by the Court: Would requiring services violate the free exercise clause of the First Amendment? Would requiring services be impermissible compelled speech in violation of the First Amendment?
As to the former, the Supreme Court’s decision in Employment Division v. Smith (1990) seemingly answers the question. That case involved Native Americans in Oregon who argued that a state law prohibiting consumption of peyote infringed their free exercise of religion. They said that their religion required use of peyote in religious rituals.
The Supreme Court, in an opinion by Justice Antonin Scalia, ruled against the Native Americans and concluded that there was no violation of free exercise of religion because the Oregon law was neutral in that it was not motivated by a desire to interfere with religion and because it applied to everyone in the state. The Court held that the free exercise clause cannot be used to challenge such a neutral law of general applicability. Justice Scalia, writing for the majority, rejected the claim that free exercise of religion required an exemption from an otherwise valid law. Scalia said that “[w]e have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.” Scalia thus declared “that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”
Likewise, Colorado’s law that prohibits business establishments from discriminating is a neutral law of general applicability. Colorado’s antidiscrimination law was not motivated by a desire to interfere with religion, and it applies to all business establishments. Businesses that want to discriminate based on the owners’ religious beliefs thus cannot prevail on their religious freedom claim unless the Supreme Court overrules Employment Division v. Smith or significantly changes the law of the free exercise clause.
If the Court overrules or limits Employment Division v. Smith, the implications will be great. Then any person could claim that his or her religion requires discrimination. The Court long has held that the focus in religious freedom cases is whether a particular person has a sincerely held religious belief, not what the religion teaches. There would be no way to keep a business owner from saying that his or her religion requires not serving women or Jews or Muslims or any group.
Although the Court in Masterpiece Cakeshop did not resolve this issue, it did indicate that claims like that of Jack Phillips and Masterpiece Cakeshop were unlikely to prevail under the free exercise clause and Employment Division v. Smith. Justice Kennedy’s opinion suggested that the free exercise clause will not provide a basis for such refusals of service when there is not the expression of hostility to religion. The Court declared: “while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
The other issue—whether requiring service violates the free speech clause of the First Amendment—has potentially even broader implications. Phillips argued that baking a cake is inherently expressive activity. He described himself as a “cake artist.” He says that to force him to design and bake a cake is to compel him to engage in speech. Compelled speech violates the First Amendment.
Justice Clarence Thomas, in an opinion joined by Justice Neil M. Gorsuch, accepted this argument and said that forcing the baker to make a cake would be impermissible compelled speech. He wrote: “Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are ‘weddings’ and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to ‘bear witness to [these] fact[s],’ or to ‘affir[m] . . . a belief with which [he] disagrees.’”
I question whether baking a cake should be regarded as expressive activity and whether a company can make such a speech claim. But, if so, then almost any kind of work can be seen as being a form of expression. If baking a cake is speech, then so is cooking food or, as in other cases that have arisen, taking pictures or making floral arrangements. Any business could refuse to serve gay weddings—or for that matter anyone—by claiming that the antidiscrimination law constitutes impermissible compelled speech.
For example, Title II of the 1964 Civil Rights Act prohibits restaurants and other public accommodations from discriminating based on race. A restaurant owner could claim that forcing it to cook food for African-Americans is impermissible compelled speech in violation of the First Amendment. Any business that wants to discriminate would be able to say that forcing it to provide services is compelling its expression. In fact, why couldn’t an employer say that it can hire only men to express a view about the type of work that should be done by the sexes or that women’s role should be in the home? Enforcing antidiscrimination law and forcing the employer to hire women would thus be impermissible compelled speech.
At the oral argument in Masterpiece Cakeshop, Justice Stephen Breyer said that accepting the speech argument would create a basis for an exception to every civil rights law adopted since “day two.” I don’t know why Justice Breyer chose “day two” in his comment, but the underlying point is surely right: An inherent tension exists between liberty and equality. The application of all antidiscrimination laws infringes the freedom to discriminate. But for decades, the law has made the choice that ensuring equality is worth sacrificing the liberty to discriminate. Put in constitutional terms, ending discrimination is a compelling government interest. Enforcing antidiscrimination laws thus should not be seen as a violation of free exercise of religion or freedom of speech.
Justice Kennedy’s retirement at the end of October Term 2017 changes so much on the Supreme Court, including what is likely to happen when the issues presented in Masterpiece Cakeshop return to the Supreme Court. Chief Justice John Roberts Jr. and Justices Thomas and Alito vehemently dissented in Obergefell v. Hodges. They also expressed concern about what recognizing a right to same-sex marriage would mean for those who oppose it on religious grounds.
In Pavan v. Smith (2017), Justice Gorsuch wrote a dissent, joined by Justices Thomas and Alito, indicating strong disagreement with the decision in Obergefell. In Pavan, the Court declared unconstitutional an Arkansas law that did not allow both members of a married same-sex couple to be listed on a child’s birth certificate.
At the oral argument in Masterpiece Cakeshop, Chief Justice Roberts and Justices Alito and Gorsuch asked questions and made comments that left no doubt as to how they would vote. Indeed, Justices Thomas and Gorsuch wrote a separate opinion in Masterpiece Cakeshop saying that the bakery should have won on free speech grounds.
At the same time, Justices Ginsburg, Breyer, Sotomayor, and Elena Kagan were part of the majority in Obergefell and Pavan. Their comments at oral argument left no doubt that they were on the side of the gay couple.
This means that the ultimate resolution of the issues will depend on the newest member of the Court. But it seems far more likely that the new justice will side with Roberts, Thomas, Samuel A. Alito Jr., and Gorsuch than with Ginsburg, Breyer, Sotomayor, and Kagan.
Justice Kennedy has written every Supreme Court decision in American history advancing rights for gays and lesbians. In Romer v. Evans (1996), he wrote the opinion for the Court striking down a Colorado initiative that repealed all laws in the state protecting gays and lesbians from discrimination and precluding the enactment of any new such laws. The Court concluded that the initiative was motivated by impermissible animus against gays and lesbians.
In Lawrence v. Texas (2003), Justice Kennedy wrote the opinion for the Court declaring unconstitutional a Texas law that made it a crime to engage in private, consensual, adult homosexual activity. Kennedy eloquently said that if the right to privacy means anything, it is what consenting adults do in their own bedroom.
In United States v. Windsor (2013), Justice Kennedy wrote the opinion for the Court striking down a key provision of the federal Defense of Marriage Act, which said that for purposes of federal law and federal benefits, marriage had to be between a man and a woman. Two years later, in Obergefell v. Hodges (2015), Justice Kennedy wrote the majority opinion holding that state laws prohibiting same-sex marriage deny equal protection and violate the right to marry.
Justice Kennedy could have written the opinion in Masterpiece Cakeshop making it clear that businesses have no First Amendment right to discriminate against gays and lesbians. Unfortunately, he didn’t, and it may be a long time before there is a majority of the Court willing to do so.
Erwin Chemerinsky is dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law.