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Supreme Court Sets Aside Colorado Commission Ruling in Wedding Cake Case, Condemning Government Hostility to Religion

Posted on: June 4th, 2018 by Art Leonard No Comments

The United States Supreme Court ruled on June 4 that overt hostility to religion had tainted the decision process in the Colorado Civil Rights Commission when it ruled that baker Jack Phillips and his Masterpiece Cakeshop had unlawfully discriminated against Charlie Craig and Dave Mullins in 2012 by refusing to make them a wedding cake.  Writing for the Court, Justice Anthony M. Kennedy reaffirmed the right of the states to ban discrimination because of sexual orientation by businesses that sell goods and services to the public, but insisted that those charged with discrimination are entitled to a respectful consideration of their religious beliefs when charges against them are being adjudicated.  Five other members of the Court – Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, Elena Kagan and Neil Gorsuch – joined Kennedy’s opinion.  Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, 2018 U.S. LEXIS 3386, 2018 WL 2465172.

Kennedy found that the particular circumstances of this case fell short of the requirement that government be neutral in matters of religion.  During the oral argument of the case in December, he had signaled this concern, making a troubling observation during the argument by Colorado’s Solicitor General, Frederick Yarger, who was defending the state court’s decision against the baker.  Kennedy said, “Counselor, tolerance is essential in a free society.  And tolerance is most meaningful when it’s mutual.  It seems to me that the State in its position here has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs.”  In his opinion for the Court, Kennedy, noting comments made at the public hearing in this case by two of the state Commissioners, said, “The neutral and respectful consideration to which Phillips was entitled was compromised here, however.  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.”

At the first public hearing, wrote Kennedy, “One 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.’”  This commissioner also said, “If a businessman want to do business in the state and he’s got an issue with the – the law’s impacting his personal belief system, he needs to look at being able to compromise.”  At the second hearing, a different commissioner spoke disparagingly about how “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.”  Kennedy found these remarks to constitute disparagement of religion by commissioners who were supposed to be neutral when acting for the government in deciding a case. He emphasized that the record of the hearings “shows no objection to these comments from other commissioners” and that the state court of appeals ruling affirming the Commission’s decision did not mention these remarks.

Kennedy also noted that as of 2012, Colorado neither allowed nor recognized same-sex marriages, so Phillips could “reasonably believe” that he could refuse to make a cake for such a purpose. The factual record suggests that Phillips cited the state ban on same-sex marriage as a reason for his refusal, in addition to his own religious beliefs.

Kennedy invoked a 1993 decision by the Supreme Court, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, in which the Court held that overtly anti-religious bias by a legislative body that had enacted a ban on ritual slaughter of chickens directly aimed at the practices of a minority religious sect violated the Free Exercise Clause.  Even though the statute, on its face, was neutral with respect to religion, and thus would normally be enforceable against anyone who engaged in the prohibited practice regardless of their religious or other motivation, the Court found that the openly articulated anti-religious sentiments of the legislative proponents had undercut the requirement of government neutrality with respect to religious practices.  The only reason the municipality had passed the ordinance was to forbid ritual slaughter of chickens by members of this particular religious sect.  Thus, it was not a neutral law, since it specifically targeted a particular religion’s practice.  Similarly, in this case, Kennedy said, evidence of hostility to religion by the Commission members tainted the decisional process.

Kennedy observed that when the Court decided in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), that same-sex couples have a fundamental right to marry, it had also noted that “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”  At the time, dissenting Justices Alito and Antonin Scalia had emphasized the inevitable clashes that might occur in future as those with religious objections confronted the reality of same-sex marriages, and Scalia – as was his usual practice in dissents from Kennedy’s opinions in gay rights cases – ridiculed Kennedy’s statements as falling short of dealing with the clashes that were sure to occur.  In this opinion, Kennedy develops the Obergefell dictum about religious objections further, but does not suggest that religious objectors enjoy a broad exemption from complying with public accommodations laws.

Justice Kagan filed a concurring opinion, joined by Justice Breyer, generally joining the Court’s reasoning but disavowing Kennedy’s reliance on evidence from a stunt conceived by William Jack, a religious opponent of same-sex marriage who filed an amicus brief in the case. Upon hearing about the Masterpiece Cakeshop discrimination charge, Mr. Jack had approached three other Colorado bakers, asking them to make a cake decorated with pictures and Biblical quotations derogatory of same-sex marriage and gay people, and all three bakers refused his request because they found the desired product to be offensive.  Jack filed charges of religious discrimination against them, but the Colorado commission rejected his charges, finding that the bakers had a right to refuse to make cakes conveying messages they found offensive.  Jack then argued – persuasively, in the view of Kennedy, Roberts, Alito and Gorsuch – that the Commission’s different treatment of the charges against the other bakers as compared to its treatment of Jack Phillips showed the Commission’s hostility to religious beliefs.  Justice Clarence Thomas, whose separate concurring opinion was joined only by Gorsuch, also found Jack’s arguments persuasive.

Kagan’s concurring opinion argued that the other baker cases were distinguishable. She pointed out that Jack had asked the bakers to make a cake that they would have refused to make for any customer, regardless of their religion or sexual orientation.  By contrast, Phillips refused to make a wedding cake that he would happily have sold to different-sex couples but refused to sell to same-sex couples.  In the former case, there is no discrimination on grounds prohibited by the Colorado statute.  Gorsuch, in his separate concurrence (with which Justice Alito joined), insisted that the three bakers were discriminating against Jack based on his religious beliefs, and insisted on distinguishing between a cake to “celebrate a same-sex marriage” and a generic “wedding cake.”

Interestingly, the Court’s opinion focused on free exercise of religion and evaded ruling on the other main argument advanced by Jack Phillips: that requiring him to bake the cake would be a form of compelled speech prohibited by the First Amendment freedom of speech clause.  The Trump Administration had come into the case in support of Phillips’ appeal, but limited its argument to the free speech contention, which Gorsuch and Thomas also embraced in their concurring opinions.

Justice Ruth Bader Ginsburg dissented in an opinion joined by Justice Sonia Sotomayor.  She minimized the significance of the statements by the two Colorado commissioners.  “Whatever one may think of the statements in historical context,” she wrote, “I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins.  The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.  First, the Division had to find probable cause that Phillips violated [the statute].  Second, the [Administrative Law Judge] entertained the parties’ cross-motions for summary judgment.  Third, the Commission heard Phillips’ appeal.  Fourth, after the Commission’s ruling, the Colorado Court of Appeals considered the case de novo.  What prejudice infected the determinations of the adjudicators in the case before and after the Commission?  The Court does not say.  Phillips’ case is thus far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah, where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council.”

Ginsburg focused her dissent on a series of statements from Kennedy’s opinion which make clear that the Court’s ruling does not endorse some sort of broad exemption for religious from complying with anti-discrimination laws, including the following:  “It is a general rule that [religious and philosophical] 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.”  “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”  “Purveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’”  Gay persons may be spared from “indignities when they seek goods and services in an open market.”  She pointed out that all of these statements “point in the opposite direction” from the Court’s conclusion that Phillips should win his appeal.

The narrowness, and possibly limited precedential weight of the Court’s opinion were well expressed by Kennedy, when he wrote, “the delicate question of when the free exercise of [Phillips’] religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.  That requirement, however, was not met here.  When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.”  Taking together the date of the incident (2012), the inconsistency Kennedy saw with the Commission’s treatment of the bakers who turned down Jack’s order for the gay-disparaging cakes, and the comments by the commissioners at the hearing, Kennedy wrote, “it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause, and its order must be set aside.”  Justice Kagan agreed that in this case the State’s decision was “infected by religious hostility or bias,” although she (and Breyer) disagreed that the Commission’s treatment of Jack’s complaint against the three bakers supported this conclusion, finding that situation distinguishable.

Gorsuch and Thomas would have gone beyond the Court’s opinion to find a violation of Phillips’ freedom of speech as well.  Kennedy wrote, “The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.”  But he took this issue no further, instead focusing on the hostility to religion he found reflected in the Colorado commission record.  Thus, the Court’s holding is narrowly focused on the requirement of neutrality toward religion by government actors.  Gorsuch and Thomas, by contrast, found the compelled-speech argument compelling.

The next shoe to drop on the possible significance of this ruling may come quickly.  Also on June 4, the Court listed for conference distribution the petition and responses filed with the Court in State of Washington v. Arlene’s Flowers, Inc., 187 Wash.2d 804, 389 P.3d 543 (Wash., February 16, 2017), petition for certiorari filed, July 21, 2017, for discussion at its June 7 conference, the results of which will probably be announced on June 11.  Arlene’s Flowers refused to provide floral arrangements for a same-sex wedding, and was found by the state civil rights agency and the Washington state courts to be in violation of the public accommodations statute.  Arlene’s petition was filed last summer, but no action was taken by the Court pending a decision of the Masterpiece Cakeshop case.  If the Court denies the petition, that would reinforce the view that the Masterpiece ruling is narrowly focused on the evidence of “hostility to religion” by the Colorado Civil Rights Commission, and that absent similar evidence in the Washington state adjudication record, the Court is willing to leave the Washington Supreme Court ruling against Arlene’s Flowers in place.  However, the Court might grant the petition and remand the case to the Washington Supreme Court for reconsideration in light of Masterpiece.  This could respond to Justice Kennedy’s observation that the Colorado Court of Appeals decision did not even mention the commissioner remarks that aroused Justice Kennedy’s ire at oral argument and that were a significant factor in the Supreme Court’s decision.  A remand to the Washington court could implicitly direct that court to examine the adjudication record for any signs of hostility to religion at any stage in that proceeding.

Interestingly, the Oregon Supreme Court recently heard oral argument in a similar wedding cake case, Klein d/b/a Sweetcakes by Melissa v. Oregon Bureau of Labor and Industries, 410 P.3d 1051 (Court of Appeals of Oregon, December 28, 2017), appeal pending before the Oregon Supreme Court (argued in May, 2018).  A ruling by the Oregon court could provide the first sign of how lower courts will interpret Masterpiece Cakeshop, depending whether the Oregon adjudication record shows signs of hostility to religion.  Interestingly, this case was instigated not by the same-sex couple who were denied service but rather by the state’s attorney general, reacting to press reports about the denial.

It is occasionally difficult when the Supreme Court issues a ruling in a controversial case to determine exactly what the ruling means for future cases.  Ultimately, the meaning of a case as precedent will depend on the factual context of subsequent cases, and on which statements by the justices are seized upon by lower court judges to support their conclusion about how the later cases should be decided.  Kennedy’s own words suggest that these analyses will necessarily be heavily influenced by the facts of those cases.  As he wrote in conclusion: “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.”

At the oral argument, Phillips and Masterpiece Cakeshop were represented by Kristen K. Waggoner of Alliance Defending Freedom, the Scottsdale, Arizona, based religious advocacy firm whose donors are funding this appeal. Donald Trump’s appointee as Solicitor General, Noel J. Francisco, made his first appearance before the Court in this capacity to argue the Administration’s freedom of speech position.  As noted above, Colorado Solicitor General Frederick R. Yarger appeared in support of the Commission’s ruling, and David D. Cole, an ACLU attorney, argued on behalf of Craig and Mullins.

I did an interview on NYC-based radio station WBAI on Monday, June 11, focused mainly on discussing this case.  Here’s the link:

 

https://archive.org/details/ProfArthurLeonardSeg61118MGH

 

 

 

 

Federal Court Rejects Recalcitrant County Clerk’s Free Exercise Claim

Posted on: August 14th, 2015 by Art Leonard No Comments

Judge David Bunning of the U.S. District Court for the Eastern District of Kentucky rejected a claim by Rowan County Clerk Kim Davis that she has a First Amendment right to refuse to issue any marriage licenses in order to avoid compromising her religious belief that a marriage can be only between one man and one woman. 

 

Granting the plaintiffs’ motion for a preliminary injunction in Miller v. Davis on August 12, Judge Bunning concluded that all factors courts consider in deciding motions for preliminary injunctions favored the plaintiffs, including likelihood of success on the merits of their claim that the clerk’s action was violating their constitutional rights, and he granted the injunction.  Clerk Davis, represented by Liberty Counsel, a so-called Christian law firm, promptly noticed her appeal to the 6th Circuit Court of Appeals and, upon advice of counsel, refused to comply with the injunction.  Shortly after noticing the appeal, Liberty Counsel also sought a stay of the injunction pending appeal. Given the 6th Circuit’s hostility to marriage equality, it seemed possible that such a stay would be granted by the circuit court, if not by Judge Bunning.

 

The lawsuit was filed by two couples: April Miller and Karen Roberts (same-sex), and Kevin Holloway and Jody Fernandez (different-sex). Both couples tried to get marriage licenses from the Rowan County Clerk’s Office shortly after the Obergefell decision was announced by the Supreme Court, reversing the 6th Circuit and affirming a Kentucky federal district court ruling for marriage equality.  Both couples were turned down, being told that the office was not issuing any marriage licenses.  Both couples then went to Rowan County Judge Executive Walter Blevins, asking him to issue licenses.  However, Blevins told them, Kentucky law authorizes him to issue licenses only when the county clerk is “absent.”  Since Clerk Davis was continuing to fulfill her other duties, Blevins concluded that she was not “absent” so he did not have authority to issue licenses.  Although at least seven neighboring counties quickly began issuing licenses after the Supreme Court ruling, these couples insisted that they wanted to get their licenses in the county where they lived, worked and paid taxes, and that they should not have to travel out of the county in order to get married, so they filed suit.

 

Unlike some other states, where clerks have argued that their controlling statute does not require them to issue marriage licenses, in Kentucky it is clear that county clerks are supposed to issue licenses, so Davis rests her defense on the proposition that she has a constitutional right based on the 1st Amendment and the state’s Religious Freedom Act to refuse to have any licenses issued by her office because of her religious objections to being seen to endorse same-sex marriages. 

 

Although it is possible that one of her clerical employees could issue the licenses, Davis found this objectionable because, she says, her name as county clerk would still appear on the document, thus implying her endorsement or approval of the marriage.  Under Kentucky’s statute, the marriage license form includes “an authorization statement of the county clerk issuing the license for any person or religious society authorized to perform marriage ceremonies to unite in marriage the persons named.”  Focusing on this, Davis argued that the “authorization statement” constitutes “an endorsement of same-sex marriage, which runs contrary to her Apostolic Christian beliefs,” wrote Judge Bunning.

 

Governor Steve Beshear had tried to talk her out of this position, and had advised her that if she was unwilling to perform her statutory duties she should resign so that somebody willing to comply with the law could be put in her place.  Davis refused, insisting that she intends to serve out the remaining three-and-a-half years of her elected term as county clerk.  

 

As a fallback defense, Davis also argued that requiring Rowan County couples who want to marry to go to a neighboring county did not impose any substantial burden on their newly-proclaimed 14th Amendment right to marry, as weighed against the significant burden on her freedom of religion in requiring her to issue licenses to same-sex couples.  She explained that her office had stopped issuing marriage licenses to anybody because she did not want to engage in discrimination against same-sex couples. 

 

Davis was sued in her official capacity for her refusal to issue any marriage licenses, which the plaintiffs alleged “significantly interferes with their right to marry because they are unable to obtain a license in their home county.”  Davis countered that they could go to a neighboring county, they could get a license from Judge Blevins, or they might in future be able to get a license on-line, pursuant to a proposal being considered by the legislature to move the licensing process out of the county clerk offices.  Judge Bunning rejected these arguments. 

 

Pointing out that the plaintiffs are “long-time residents who live, work, pay taxes, vote and conduct other business in Morehead,” the county seat, they were entitled to prefer to get their licenses locally. 

 

Furthermore, he observed, “there are individuals in this rural region of the state who simply do not have the physical, financial or practical means to travel,” so the office’s refusal to issue any licenses at all would substantially burden some couples who want to marry.  The judge also noted that 57 of the state’s 120 elected county clerks had petitioned the governor to call a special legislative session to enact a law allowing them to refuse to issue licenses to same-sex couples.  Asked Bunning, “If this Court were to hold that Davis’ policy did not significantly interfere with the right to marry, what would stop the other 56 clerks from following Davis’ approach?”  If many county clerks refused to issue licenses, an “inconvenience” could become a “substantial interference” with what the Supreme Court has identified as a “fundamental right.” 

 

Additionally, Bunning agreed with Judge Blevins that Blevins was not authorized by statute to issue marriage licenses in place of Davis when Davis was not “absent” from work, and he concluded further that putting the entire burden for issuing licenses in Rowan County on Judge Blevins, who has many other duties, is not a “viable option.”  As to the on-line alternative, Bunning pointed out it was only a proposal and so it did not respond to the present concern.

 

Bunning found that the state did not have a compelling interest to protect Davis’ free exercise rights that would outweigh the state’s interest in upholding the rule of law, under which the plaintiffs were entitled to get marriage licenses.  “Our form of government,” he wrote, “will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions.  Davis is certainly free to disagree with the Court’s opinion, as many Americans likely do, but that does not excuse her from complying with it.  To hold otherwise would set a dangerous precedent.”  Delaying the plaintiffs’ attempts to exercise their fundamental right to marry imposes an irreparable harm on them, the judge found, while he disagreed that requiring the office to issue licenses would impose any substantial harm on Davis.

 

Bunning also disagreed with Davis’s argument that the authorization statement on the marriage license form implied or communicated that she endorses or approves of same-sex marriage.  It is merely a statement that the applicants are legally qualified to marry. Furthermore, he rejected her argument that Governor Beshear’s directive, issued after the Obergefell decision, instructing county clerks to issue licenses to same-sex couples, did not serve a compelling state interest or that she was entitled to a religious exemption from complying with it.  Bunning found that Beshear’s directive is a religiously neutral and generally applicable state policy mandating compliance with the law and not singling out religion in any way. “While facial neutrality is not dispositive,” wrote Bunning, “Davis has done little to convince the Court that Governor Beshear’s directive aims to suppress religious practice.” 

 

He also rejected her argument that Attorney General Jack Conway’s decision not to defend the marriage ban in 2014, leaving the governor to hire outside counsel to represent the state before the 6th Circuit, provided some kind of precedent for her seeking an exemption from being required to comply with her job. Bunning rejected her attempt to draw an analogy, seeing Conway’s position as an “exercise of prosecutorial discretion” based on Conway’s announced view that the ban was not defensible in court, which turned out to be correct at the level of the Supreme Court.  “By contrast,” Bunning pointed out, “Davis is refusing to recognize the legal force of U.S. Supreme Court jurisprudence in performing her duties as Rowan County Clerk.  Because the two are not similarly situated, the Court simply cannot conclude that Governor Beshear treated them differently based upon their religious convictions.”

 

Davis also attempted to assert a free speech claim under the 1st Amendment, which was quickly disposed of under Supreme Court precedents holding that public employees speaking in their official capacity do not enjoy individual 1st Amendment protection for their speech.  After questioning whether the act of issuing marriage licenses can even be characterized as speech, Bunning pointed out that any speech involved in that process (such as the statements on the license form to which Davis objects) is state speech, not Davis’s speech.  “The State prescribes the form that Davis must use in issuing marriage licenses,” he wrote.  “She plays no role in composing the form, and she has no discretion to alter it.  Moreover, county clerks’ offices issue marriage licenses on behalf of the State, not on behalf of a particular elected clerk.”  To Bunning, it was clear that the state was not compelling Davis to communicate personal approval of same sex marriages when it requires her to issue licenses.  When Davis issues licenses, she is acting as an elected official, not as an individual member of the public. 

 

Bunning also rejected her argument that requiring her to issue licenses imposes a constitutionally forbidden “religious test” for her to be a public employee.  “The State is not requiring Davis to express a particular religious belief as a condition of public employment,” he wrote, pointing out that what the state does require is that “all state officials” must “swear an oath to defend the U.S. Constitution.”  She swore such an oath when she took office, he wrote, and her refusal to comply with “binding legal jurisprudence” has “likely violated the constitutional rights of her constituents.”  Quoting from the Obergefell decision, he wrote, “When such ‘sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty has been denied.’”  “Such policies simply cannot endure,” Bunning asserted.

 

Finally, having concluded that requiring Davis to issue marriage licenses does not substantially burden her free exercise of religion, Bunning rejected her claim to protection under Kentucky’s Religious Freedom Act, which does not grant more protection than the federal Religious Freedom Restoration Act on which it is based.  “Davis remains free to practice her Apostolic Christian beliefs,” he wrote.  “She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail.  She is even free to believe that marriage is a union between one man and one woman, as many Americans do.  However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.”

 

Concluding that it was in the public interest to do so, Bunning issued two orders.  First, he ordered that the plaintiffs’ motion for a preliminary injunction be granted.  Second, he ordered that “Defendant Kim Davis, in her official capacity as Rowan County Clerk, is hereby preliminarily enjoined from applying her ‘no marriage licenses’ policy to future marriage license requests submitted by Plaintiffs.”

 

The plaintiffs promptly filed a statement opposing Liberty Counsel’s application to stay Judge Bunning’s order, and the court gave Liberty Counsel a short deadline to respond to the opposition.