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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

 

 

 

 

Colorado Appeals Court Rules against Wedding Cake Baker in Discrimination Case

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

Continuing an unbroken string of judicial rejections of free exercise of religion defense to discrimination claims against small businesses that decline goods or services to same-sex couples for their commitment ceremonies or weddings, a unanimous three-judge panel of the Colorado Court of Appeals has affirmed a ruling against Masterpiece Cakeshop, Inc., and its proprietor, Jack C. Phillips, by the Colorado Civil Rights Commission.  Judge Daniel M. Taubman wrote the opinion for the court, released on August 13.

 

Charlie Craig and David Mullins planned in 2012 to get married in Massachusetts and then to hold a wedding celebration for family friends in Colorado, where they lived.  At the time, the state of Colorado did not recognize same-sex marriages performed in other jurisdictions.  They visited Masterpiece Cakeshop and asked the proprietor, Jack Phillips, to design and create a cake for their celebration.  Phillips declined, stating to them that he does not create wedding cakes for same-sex weddings because of his religious beliefs.  He told them he would be happy to make and sell them other baked goods, but not a wedding cake.  The two men left the store and made arrangements with another bakery.  Craig’s mother called Phillips to follow up, but he reiterated his position that he would not make wedding cakes for same-sex weddings due to his religious belief, and also because such weddings were not legally recognized in Colorado.

 

Craig and Mullins filed a complaint with the Colorado Civil Rights Division, invoking the Colorado Anti-Discrimination Act (CADA), which bans discrimination because of sexual orientation by public accommodations.  After investigation, the Division noted probable cause and filed a formal complaint, that was tried before an Administrative Law Judge, who ruled in favor of Craig and Mullins, rejecting Phillips’ claimed religious exemption defense.  The Civil Rights Commission affirmed the ALJ decision, issuing a “cease and desist order” against Masterpiece, that required the company to (1) take remedial measures, including comprehensive staff training and alteration to the company’s policies to comply with the CADA, and (2) file quarterly compliance reports for two years with the Division describing the company’s remedial measures and documenting all patrons who had been denied service and the reasons for the denial.  The court’s opinion does not mention any fine or damages award.  Of course, since Craig and Mullins had long since married and held their celebration, there was no need to order Masterpiece to sell them a wedding cake. 

 

Phillips appealed to the courts, claiming, as he had maintained all along, that his refusal to make a wedding cake for the gay couple did not violate the statute, and that he had a right under the 1st Amendment to refuse to create a wedding cake when this act would conflict with his sincerely-held religious beliefs.  Phillips claimed that he did not discriminate because of the sexual orientation of Craig and Mullins, but rather because he disapproved of same-sex marriages on religious grounds.  He pointed out that he did not refuse to do business with them because they were gay, as he offered to sell them any other baked goods, and sought to draw a distinction between their status and their conduct in having a same-sex marriage.  He pointed out, for example, that he would equally refuse to design a cake for two heterosexual men who wanted to celebrate their wedding, to advance his argument that he was not discriminating based on status.

 

The court rejected this rationalization, observing that “the United States Supreme Court has recognized that such distinctions are generally inappropriate.” Judge Taubman quoted from Christian Legal Soc’y Chapter of University of California, Hastings College of Law v. Martinez, 561 U.S. 661 (2010), in which petitioner contended that it did not exclude individuals from membership because of their sexual orientation, but rather “on the basis of a conjunction of conduct and belief that the conduct is not wrong,” to which the Court replied, “Our decisions have declined to distinguish between status and conduct in this context.” 

 

Taubman also cited the majority and concurring decisions in Lawrence v. Texas, 539 U.S. 558 (2003), in which Justice Anthony Kennedy’s opinion said that a law criminalizing homosexual conduct is “in and of itself an invitation to subject homosexual persons to discrimination” and Justice Sandra Day O’Connor’s concurring opinion said, “While it is true that the [challenged sodomy law] applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual.  Under such circumstances, [the] law is directed toward gay persons as a class.”  These comments were directed against the state of Texas’s argument that its “Homosexual Conduct Law” was not specifically anti-gay because it outlawed oral or anal sex between two persons of the same sex regardless of their sexual orientation, an argument analogous to Phillips’ denial that his rejection of Craig and Mullins’ order was antigay. 

 

Taubman invoked as well the highest-level judicial precedent to deal directly with the issue in this case, Elane Photography v. Willock, 309 P.3d 53 (2013), in which the New Mexico Supreme Court upheld a discrimination ruling against a wedding photography who refused to do business with a lesbian couple for their commitment ceremony.  Wrote Taubman, “Masterpiece admits that it refused to serve Craig and Mullins ‘because of’ its opposition to persons entering into same-sex marriages, conduct which we conclude is closely correlated with sexual orientation.  Therefore, even if we assume that CADA requires plaintiffs to establish an intent to discriminate. . . the ALJ reasonably could have inferred from Masterpiece’s conduct an intent to discriminate against Craig and Mullins ‘because of’ their sexual orientation.”

 

Before addressing Phillips’ religious exemption argument, the court dealt with his argument that creating a wedding cake is an artistic expression, and that the First Amendment’s protection for freedom of expression should shield him from being compelled by state law to create a wedding cake. “Masterpiece contends that wedding cakes inherently communicate a celebratory message about marriage and that, by forcing it to make cakes for same-sex weddings, the Commission’s cease and desist order unconstitutionally compels it to express a celebratory message that it does not support.”  The ALJ had rejected this argument, and so did the court. 

 

“We conclude that the act of designing and selling a wedding cake to all customers free of discrimination does not convey a celebratory message about same-sex weddings likely to be understood by those who view it,” wrote Taubman.  “We further conclude that, to the extent that the public infers from a Masterpiece wedding cake a message celebrating same-sex marriage, that message is more likely to be attributed to the customer than to Masterpiece.”  After all, Masterpiece would be creating the cake because of its legal duty not to discriminate, not because it wishes to convey its own message of approval of same-sex marriages.  The court drew an analogy to the Supreme Court’s rejection of law schools’ argument that requiring them to allow military recruiters on campus during the era of “don’t ask, don’t tell” was compelling them to express approval of that policy.  “The Supreme Court rejected this argument,” wrote Taubman, “observing that students ‘can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so.’”

 

The court found this case distinctly different from the Supreme Court’s ruling that a parade sponsor’s 1st Amendment expression rights allowed the sponsor to exclude a gay group from openly participating in the parade.  The Court saw that as a compelled speech case, holding that a parade is an intrinsically expressive activity whose sponsor has a right to control the views that are expressed, despite a state public accommodations law banning sexual orientation discrimination.  “In contrast,” wrote Taubman, “it is unlikely that the public would understand Masterpiece’s sale of wedding cakes to same-sex couples as endorsing a celebratory message about same-sex marriage.”  He noted that the law would not prohibit Masterpiece and Phillips from articulating their objections to same-sex marriage.  Furthermore, he noted, “Phillips denied Craig’s and Mullin’s request without any discussion regarding the wedding cake’s design or any possible written inscriptions,” so it is unclear exactly what speech he would be “compelled” to engage in when decorating the cake.

 

Finally, turning to the religious free exercise argument, the court noted that under established Supreme Court precedent, an individual is not excused by his or her religious beliefs from complying with neutral laws of general application.  Under that standard, because the CADA is such a law, no business or individual can claim a religious exemption from complying with it.  The only exemption generally recognized under the law is for religious organizations that claim an exemption from anti-discrimination laws, for example, in their selections of employees or contractors to perform religious functions.  The court rejected Masterpiece’s argument that CADA was not a neutral law of general application.  The law “does not compel Masterpiece to support or endorse any particular religious views,” Taubman pointed out.  “The law merely prohibits Masterpiece from discriminating against potential customers on account of their sexual orientation,” he continued.  Thus, “we conclude that CADA was not designed to impede religious conduct and does not impose burdens on religious conduct not imposed on secular conduct.”

 

Having found the law to be neutral as to religion and generally applicable, the court concluded that its application to Masterpiece and Phillips turned on whether the state had a rational basis, the lowest level of constitutional review.  “We easily conclude that it is rationally related to Colorado’s interest in eliminating discrimination in places of public accommodation,” Taubman wrote.  “The Supreme Court has consistently recognized that states have a compelling interest in eliminating such discrimination and that statutes like CADA further that interest.  Without CADA, businesses could discriminate against potential patrons based on their sexual orientation.  Such discrimination in places of public accommodation has measurable adverse economic effects.  CADA creates a hospitable environment for all consumers by preventing discrimination on the basis of certain characteristics, including sexual orientation.  In doing so, it prevents the economic and social balkanization prevalent when businesses decide to serve only their own ‘kind,’ and ensures that the goods and services provided by public accommodations are available to all of the state’s citizens.”

 

Finally, the court rejected Phillips’ argument that the Commission exceeded its authority by imposing a remedy that went beyond the specific complaint of Craig and Mullins, requiring it to change policies and create wedding cakes for hypothetical future customers.  The court found that “individual remedies are merely secondary and incidental to CADA’s primary purpose of eradicating discriminatory practices.”  Masterpiece had conceded that its rejection of this request to create the wedding cake was pursuant to a company policy, and there was actually evidence in the hearing record that they had also rejected doing business with other same-sex couples, so the Commission’s order “was aimed at the specific discriminatory or unfair practice involved in Craig’s and Mullins’ complaint.”

 

Shortly after the opinion was released, Phillips’s attorney announced that an appeal to the Colorado Supreme Court would be attempted.  That court has control over its docket and is not required to grant review to this unanimous court of appeals ruling, but given the wide public interest in the case, it would seem likely that review would be granted.  Numerous amicus briefs were filed with the court from such groups as the National Center for Lesbian Rights, Americans United for Separation of Church and State, groups representing small business associations, religious organizations, the NAACP Legal Defense Fund, and Lambda Legal Defense Fund. 

 

Phillips is being represented by Arizona attorney Jeremy D. Tedesco from Alliance Defending Freedom, a so-called “Christian” legal defense group, so he does not bear the expense of continuing litigation on his own.

 

Craig and Mullins are represented by Paula Greisen of King & Greisen, a Denver firm, with Mark Silverstein and Sara Neel, Denver attorneys, and Ria Tabacco Mar, a New York attorney.  The Commission is represented by the Colorado Attorney General’s office.