June 18, 2018 Practice Points

Supreme Court Rules Narrowly in Religious Rights Versus Gay Rights Case

By Ariel E. Harris and Graves Upchurch

In a 7-2 decision, the Supreme Court overturned the Colorado Civil Rights Commission’s decision to sanction a Colorado baker who refused to bake a cake for a same-sex couple’s wedding reception. In doing so, the Court issued a narrow holding, leaving the ultimate question of how First Amendment rights should be interpreted in the face of anti-discriminatory laws largely unresolved.

In 2012, Jack Phillips, a Colorado bakery owner, refused to serve a same-sex couple seeking to purchase a cake for their wedding reception. Phillips, a devout Christian, said his religious beliefs prevented him from supporting a marriage between two men. In response, the couple filed a complaint with the Colorado Civil Rights Commission alleging a violation of the Colorado Anti-Discriminatory Act, which protects individuals from discrimination based on sexual orientation. A formal hearing took place where a state administrative law judge ruled in favor of the couple, rejecting Phillips’ First Amendment rights arguments of free speech and the free exercise of religion, and finding his conduct illegal. The Colorado Court of Appeals affirmed this decision.

Justice Kennedy, the author of several Supreme Court opinions advancing same-sex rights, took a different tone in analyzing whether the commission’s ruling against Phillips was proper. Instead of issuing a groundbreaking holding condoning the baker’s conduct, the Court opted to side with Phillips on the narrow rationale that he was not given a fair and impartial trial by the commission. Kennedy noted that the commissioners present at the hearing, “endorsed the view that religious beliefs cannot legitimately be carried into the public sphere…disparaged Phillip’s faith as despicable…and compared his…religious beliefs to defenses of slavery and the Holocaust.” Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission, 584 U.S.__    (2018). Kennedy explained that the commission’s complete disdain and hostility toward religion was entirely inappropriate for a body tasked with enforcing Colorado’s anti-discriminatory law. Furthermore, the opinion cites three different occasions where the same commission found the refusal of a baker to convey anti-gay messages and religious text a lawful exercise. Kennedy speculated that the commission treated Phillips’ case differently because his refusal was based on religion, as oppose to a conscious-based objection in the other cases.

Consequently, the Court held the commission’s hostile treatment of Phillips’ religion violated the First Amendment. Specifically, under the First Amendment, a state cannot impose regulations that are hostile to the free exercise of religion, nor can state governments engage in conduct that suggests the illegitimacy of certain religious beliefs. The Free Exercise Clause ensures that governments will handle religious issues in a neutral manner. The Supreme opined that the Commission’s aggression toward Phillips and his religious beliefs, evidenced by the comments made during the original hearings, constituted a violation of the Free Exercise Clause. Because the Supreme Court determined that Phillips was not given a fair, neutral hearing in accordance with the Constitution, the Colorado Civil Rights Commission’s decision was overturned.

Kennedy concluded the opinion by acknowledging that courts will have to grapple with future decisions regarding the interaction between the First Amendment and anti-discrimination laws in the public sphere. However, he stressed the importance of tolerance when handling these conflicts, or government agencies will risk having their decisions reversed, as was the case here. Furthermore, Kennedy underlined that individuals should not be subjected to discrimination based on sexual orientation when seeking goods in the public market. What went wrong in Phillips’ case was the process by which the commission came to its decision, not the ability of business owners to work-around anti-discrimination laws by invoking their First Amendment rights.

The narrow holding in this opinion sets the stage for future conflicts between religious rights backers and gay rights supporters. Broader questions such as whether a business owner can refuse service on religious grounds, or whether ordering Phillips to bake a cake for a same-sex wedding violates his right to free speech were left undecided, but the Court may offer some clarity sooner rather than later. Currently, the Supreme Court is deciding whether to hear the case of a Washington florist who violated Washington state’s anti-discrimination law when she refused to supply flowers for a same-sex marriage. Similarly, the florist claims she was exercising her First Amendment rights. If the Supreme Court accepts this case, an answer to the broader issues left unresolved here may be on the horizon.

Ariel E. Harris is an associate with Nelson Mullins Riley & Scarborough LLP, Charlotte, North Carolina. Graves Upchurch is a summer associate with Nelson Mullins Riley & Scarborough LLP, Charlotte, North Carolina.


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