In June, the Supreme Court issued its highly anticipated decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.1 This decision was closely followed by the media, religious rights advocates, and gay rights advocates alike. Rather than issue a definitive ruling favoring either religious for-profit business owners or LGBT individuals, the Supreme Court delicately avoided making a decision that either side could declare a victory. The majority emphasized that its holding was limited to the facts of the case and that further clarification of the boundaries between religious rights and LGBT rights would have to play out in the courts.
December 21, 2018 Feature
Supreme Court’s Decision in Masterpiece Cakeshop Provides Little Guidance on Religious and LGBT Rights
By Sam Schwartz-Fenwick
The Case
Charlie Craig and David Mullins were looking to celebrate their marriage by purchasing a custom wedding cake at Masterpiece Cakeshop, a bakery in Colorado. Bakery owner Jack Phillips refused to make the cake for the couple, citing his religious opposition to same-sex marriage.
The couple then filed a charge with the Colorado Civil Rights Commission (Commission), claiming a violation of the Colorado Anti-Discrimination Act, which makes it “a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of . . . sexual orientation, . . . the full and equal enjoyment of the goods [and] services” of any “place of business engaged in any sales to the public and any place offering services . . . to the public.”2 Phillips maintained that First Amendment rights to freedom of speech and free exercise of religion protected his refusal to make custom wedding cakes for same-sex couples.
The Commission found in favor of the couple and determined that the actions of the bakery violated Colorado law. Phillips appealed, and the Colorado Court of Appeals affirmed the Commission’s ruling. The Colorado Supreme Court refused to hear his appeal, and Phillips filed for certiorari to the United States Supreme Court.
The Supreme Court’s Decision
In a 7–2 decision, the Supreme Court reversed the judgment of the Colorado Court of Appeals and found the Commission had violated Phillips’s First Amendment rights of free speech and free exercise of religion. The Supreme Court acknowledged that the case presented “difficult questions as to the proper reconciliation of at least two principles”: (1) the authority of the state “to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services”; and (2) the “right of all persons to exercise fundamental freedoms under the First Amendment.”3
After acknowledging the tension between these two principles, the Court did not seek to reconcile them. Instead, the Court first found the creation of wedding cakes was a “creative” endeavor implicating freedom of expression under the First Amendment, not merely the sale of a good. The Court explained that as Phillips’s refusal to bake a wedding cake implicated the First Amendment’s freedom of expression and free exercise of religion clauses, the Commission was obligated to weigh the cake shop owner’s First Amendment rights against the gay couple’s rights under Colorado law.
The Court found the Commission exhibited hostility toward Phillips’s beliefs throughout the hearing. Instead of performing the balancing of interests with the “neutrality that the Constitution requires,” Commission members made disparaging comments about Phillips’s religious beliefs and treated his case differently than another case before the Commission that concerned a different cake shop owner who refused to ice and design a cake with homophobic messages and anti-same-sex marriage symbols.4 The Court found that this treatment of Phillips’s case violated the First Amendment, as it indicated a hostility to a religion or religious viewpoints.
The Court noted that “[o]ne commissioner suggested that Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’”5 At a subsequent meeting a commissioner said:
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.6
The Court took offense at this statement, finding it ran afoul of the Commission’s obligation to remain fair and neutral.
The Court found further evidence of bias in the Commission’s finding as to Phillips in that it had found, in the other similar case before it, that another bakery did not violate Colorado’s antidiscrimination law when the other baker refused to sell a bible-shaped cake iced with messages the bakery designer believed were homophobic. In that other case, the baker had said she would sell bible-shaped cakes to the customer but would not write phrases such as “Homosexuality is a detestable sin. Leviticus 18:22” or ice an illustration of two men holding hands before a cross with a red X running through them to show opposition.
The Supreme Court took great care to underscore that the holding was limited to the facts of that case, stating:
The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.7
In Justice Kagan’s concurrence, she agreed with the Court that the statements of the commissioners were problematic. She noted that the issue simply could have been resolved if the Commission had held that refusal to make a wedding cake for opposite-sex but not same-sex couples violated the Colorado law, whereas a shop owner’s policy refusing to create a cake with homophobic messages for anyone was not a violation. She stressed that her concurrence was to object to the reasoning of the Commission, not its ultimate result.
Justice Gorsuch took a different view in his concurrence, noting that no bias was shown in the refusal to bake the wedding cake, as the baker would not have made a same-sex wedding cake for any customer. Justice Gorsuch thus drew a distinction between a wedding cake and a same-sex wedding cake. Justice Thomas took that one step further, noting in his concurrence that the act of baking a wedding cake communicates the message that a wedding is occurring. This communication constitutes speech under the First Amendment, and requiring a baker to bake a wedding cake for a union the baker does not consider a wedding is impermissible compelled speech.
Justice Ginsberg issued a blistering dissent. She noted that at issue was not a same-sex wedding cake, but rather a wedding cake for a same-sex couple. She stressed that nothing distinguished this cake from a cake made for an opposite-sex wedding. The only difference was the identity of the cake buyers. As the baker refused to sell a wedding cake to a gay couple, in Justice Ginsberg’s view he violated Colorado’s antidiscrimination law. Justice Ginsberg had no issue differentiating this situation from that of the homophobic cake. She noted that in the latter case, as the baker would refuse to bake a cake laden with homophobic messages for anyone regardless of their identity, this refusal did not run afoul of the law.
Justice Ginsburg further noted that the remarks by the Commissioners, to which the Court took umbrage, were inapposite. She noted that the statements they made do not make the baker’s refusal to sell a gay couple a wedding cake any more permissible. She further noted that the Commission’s ruling went through several layers of independent administrative and court review, none of which the Court claimed were anything but neutral toward religion.
The Takeaway for Employers and State Agencies
Court watchers anticipated that the decision in Masterpiece Cakeshop would provide employers and small business owners with guidance on how to lawfully traverse the landmines that arise when religious beliefs conflict with civil rights statutes. By restricting the decision to the facts, the Court did not provide this guidance.
In face of Justice Kennedy’s retirement, a new and more conservative court majority might use an expansive view of the First Amendment to shield business owners from acting in a manner that conflicts with their religious beliefs. It also is possible that if faced with an employment case that addressed an employer’s religious views as to an LGBT employee (e.g., a claim over providing spousal benefits to a same-sex couple), a majority of the Court might find that benefits sought by same-sex couples are distinguishable from rights or benefits sought by opposite-sex couples. The finding by Justice Gorsuch that a same-sex wedding cake is different than a wedding cake could be used in the employment litigation context to lead the Court to uphold a refusal by a religiously motivated employer who provides spousal benefits to provide same-sex spousal benefits.
For now, given the limited nature of the Masterpiece Cakeshop decision, employers need not and should not change their equal employment opportunity (EEO) or other employment practices, policies, and trainings. The decision does not place rights to the free exercise of religion over LGBT rights or other civil rights, and employers should not take action that elevates the right to free exercise of religion within the workplace. State agencies should continue to respect the religious views of all parties and maintain a neutral posture toward religion in enforcing laws. They also should recognize, at least in states with laws that expressly protect LGBT individuals, that LGBT individuals are entitled to constitutional protections, and that business owners’ free exercise rights do not generally allow them to skirt neutral and generally applicable laws.
Editor’s Note: Left unaddressed in the Supreme Court’s decision here is the question whether Commission members’ own rights of free expression were inferior to the shop owner’s rights to due process. If the commissioners’ comments cited in the decision had been broadcast on, say, social media and not expressed in the hearing, could or should the result have been different? If you’d like to write on that issue, contact the Editor.
Endnotes
1. 138 S. Ct. 1719 (2018).
2. Colo. Rev. Stat. § 24-34-601.
3. Masterpiece Cakeshop, 138 S. Ct. at 1723.
4. Id. at 1724, 1729–30.
5. Id. at 1729.
6. Id.
7. Id. at 1732.