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Supreme Court Will Consider Religious and Free Speech Exemptions to Anti-Discrimination Law in Colorado Wedding Cake Case

Posted on: June 26th, 2017 by Art Leonard No Comments

On June 26 the United States Supreme Court granted a petition filed by Alliance Defending Freedom (ADF), the anti-gay “religious” law firm, on behalf of Jack Phillips and his business, Masterpiece Cakeshop, to determine whether the Colorado Court of Appeals correctly denied Phillips’ claim that he is privileged under the 1st Amendment to refuse an order to bake a wedding cake for a same-sex couple.  Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission, No. 16-111 (cert. granted June 26, 2017).

The petition was filed last July 22, and had been listed for discussion during the Court’s conferences more than a dozen times. The addition of Donald Trump’s nominee, Neil Gorsuch, to fill a vacancy on the Court was likely the catalyst for a decision to grant review, although it the ultimate disposition of the case could heavily depend on the views of Justice Anthony Kennedy, the “swing justice” on the Court in cases involving LGBT issues.  However, in an interesting twist, one of the main precedents that stands in the way of a victory for Phillips and Masterpiece Cakeshop is an opinion written in 1990 by Justice Antonin Scalia, whose death led to Gorsuch’s appointment.

The petition asks the Court, in effect, to reverse or narrow its long-standing precedent, Employment Division v. Smith, in which Justice Antonin Scalia wrote that individuals do not have a constitutional right based on their religious beliefs to refuse to comply with “neutral” state laws of general application. Neutral state laws are those that do not directly concern religious beliefs or practices, but whose application may incidentally affect them.  In response to this decision, both Congress and many state governments have passed statutes allowing persons to claim religious exemptions from complying with statutes under certain circumstances.

The question which the Court will consider, as phrased by ADF in its petition, is: “Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment?”

The Court has addressed the free speech aspects of this issue in the past.  In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995), the Court ruled that a state’s public accommodation law would have to give way to the 1st Amendment expressive association rights of the organizers of Boston’s St. Patrick’s Day Parade, who refused to allow an LGBT group to march under its own banner in the parade.  The Court ruled unanimously, in an opinion by Justice David Souter, that a parade is a quintessential expressive activity, and the organizers of the parade have a right to exclude groups whose presence would convey a message that the parade organizers do not wish to convey.

By a bare 5-4 majority, the Court extended that ruling in Boy Scouts of America v. Dale (2000), in which Chief Justice William Rehnquist wrote for the Court, holding that the Boy Scouts of America, like the Boston parade organizers, is an expressive association and could refuse to allow an openly gay man to serve as an assistant scoutmaster because this would communicate to its members and the public a view as to homosexuality that the BSA did not want to communicate.  The ruling sparked two dissenting opinions, sharply contesting the majority’s weighing of rights in allowing the Boy Scouts to discriminate and challenging the view that BSA could be characterized as an “expressive association.”

Interestingly, the winning parties in both of these cases have over time come to see the wisdom of allowing at least some LGBT people to participate in their activities.  The Boston parade organizers have allowed some LGBT groups to participate in their parade in recent years, and BSA voted to allow its local troops to permit participation by LGBT people as members and adult leaders, although troops sponsored by religious organizations have continued to exclude LGBT people in some places.

The Court has yet to return to the religious objection aspect of this case.  A few years ago it refused to review a decision by the New Mexico Supreme Court holding that a wedding photographer did not have a 1st Amendment right to refuse to provide her services to a lesbian couple seeking photographic documentation of their commitment ceremony.  Since then, courts in several other states have rejected religious exemption claims by various businesses that provide wedding-related services, including a recent New York ruling refusing a religious exemption to a farm that had hosted and catered weddings.  The more recent Hobby Lobby case, in which the Supreme Court held that a closely-held corporation could refuse on religious grounds to cover certain contraceptive methods under its health care plan, was litigated in terms of a statutory exemption provided by the federal Religious Freedom Restoration Act, and thus was not grounded on a constitutional claim.

A recent appellate ruling by a Kentucky court, however, upheld the right of a company that makes custom t-shirts to refuse an order from a gay organization for shirts to publicize the organization’s Gay Pride festival.  The 2-1 ruling was premised on the court’s conclusion that the denial of services was not based on the sexual orientation of anybody, but the concurring judge also cited the state’s Religious Freedom Restoration Act, while the dissenter found a clear violation of the a municipal anti-discrimination law and no right to a religious exemption.

In the case granted review by the Supreme Court, Charlie Craig and David Mullins were planning to go out-of-state to marry, because in 2012 Colorado did not yet allow same-sex marriages.  However, they planned to follow up with a celebration near their home in order to more easily involve their family and friends, and went to Masterpiece Cakeshop to order a cake for the occasion.  The owner, Jack Phillips, declined their order, citing his religious objection to same-sex marriage.  When Craig and Mullins publicized this refusal, they were offered a free wedding cake by another bakery which they accepted, but they also decided to file a charge of sexual orientation discrimination with the Colorado Civil Rights Division.  The Division ruled in their favor, approving an administrative law judge’s decision that rejected Phillips’s 1st Amendment defenses of free exercise of religion and freedom of speech and found that Phillips had violated the state’s statutory ban on sexual orientation discrimination by businesses.

ADF appealed the administrative ruling to the Colorado Court of Appeals, which rejected both of Phillips’ constitutional arguments.  The court held that baking and decorating a wedding cake is not speech or artistic expression, as Phillips had argued, and that the Commission’s order “merely requires that [Phillips] not discriminate against potential customers in violation of [the Colorado Anti-Discrimination Act] and that such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.”  The court deemed the Act to be a “neutral law of generally applicability,” and thus within the scope of the Supreme Court’s Employment Division v. Smith precedent.  Colorado does not have a Religious Freedom Restoration Act that could arguably create a statutory exemption to the anti-discrimination statute.

Because the Supreme Court granted review on both the free speech and religious exercise claims, there might result a split decision by the Court.  If it wants to adhere to a broad view of Employment Division v. Smith, it can easily follow the route taken by various state courts that have refused to allow businesses to claim a constitutional religious exemption from complying with anti-discrimination laws.  Or, it could use this case to back away from the Employment Division holding or narrow it in some way.

The Court is unlikely to rule for Phillips on the free speech argument if it sticks with its precedents, since the recognized constitutional exception is for organizations or activities that have a primary or significant expressive purpose. Both Hurley and Dale involved non-profit organizations, not businesses, that were engaged in activities that the Court found (by only a narrow margin in the case of the Boy Scouts) to have strong expressive association claims.  It is unlikely that a business whose primary activity is selling cakes could make a similar claim.  But the Supreme Court can be full of surprises, and there have been significant changes in its membership since these cases were decided.  The Court might bow to the argument by ADF that people of strong religious convictions who wish to incorporate those convictions into their businesses have a right not to be compelled by the government to undertake activities that would express a view contrary to their religious beliefs.  This would potentially tear a big hole in the protection against discrimination provided by the public accommodations laws most of the states, and not just those that ban discrimination because of sexual orientation or gender identity.

The Colorado Court of Appeals’ decision will be defended before the Supreme Court by the state’s attorneys. Lambda Legal and One Colorado, with cooperating attorneys John McHugh and Anthony Giacomini of Denver-based Reilly Pozner LLP, filed an amicus brief in response to the petition.  Given the wide-ranging interest in the issues underlying this case, it is likely that the Court will receive a mountain of amicus briefs.  Oral argument will be held sometime next winter.

 

New Mexico Supreme Court Rules Against Wedding Photographer in Sexual Orientation Discrimination Case

Posted on: August 23rd, 2013 by Art Leonard No Comments

The New Mexico Supreme Court unanimously ruled on August 22 that a wedding photography business violated the New Mexico Human Rights Act by refusing service to a lesbian couple for their same-sex commitment ceremony.  The court held that the photography business owners’ religious and free speech rights were not unconstitutionally violated by this result.  The case is Elane Photography v. Willock.

 The case arose when Vanessa Willock contacted Elane Photography LLC by email to inquire about booking the company for a commitment ceremony with her same-sex partner.  Elane declined the business.  Elaine Huguenin, co-owner of the business with her husband, told Willock that they only did “traditional weddings,” and when Willock pressed her, she replied specifically that they “do not photograph same-sex weddings.”  Misti Collinsworth, Willock’s partner, then contacted Elane about photographing a wedding, without mention the gender of the participants, and Huguenin sent her pricing information and an invitation to meet to discuss her services.  When Collinsworth did not respond, Huguenin again e-mailed to try to set up a meeting.

Willock and Collinsworth contracted with somebody else for their ceremony, and filed a discrimination charge against Elane Photography with the New Mexico Human Rights Commission.  New Mexico’s Human Rights Act forbids discrimination because of sexual orientation by public accommodations.  Throughout this case, Elane has conceded that its business comes within the statute’s definition of public accommodation, but has argued that it is privileged under both the First Amendment of the U.S. Constitution and under the New Mexico Religious Freedom Restoration Act to decline to photograph same-sex ceremonies, as a matter of freedom of expression and free exercise of religion.  The Commission ruled against Elane, which appealed to the state courts.

The trial court and the court of appeals rejected Elane’s arguments, and now the state’s Supreme Court has agreed with the lower courts, in an opinion by Justice Edward L. Chavez.  This may not be the last word, since Elane could petition the U.S. Supreme Court to consider Elane’s constitutional defenses.

First the New Mexico Supreme Court rejected Elane’s argument that it was not discriminating based on sexual orientation, as such, but rather was refusing to involve itself in a particular event, a same-sex ceremony, that did not turn on the sexual orientation of anybody.  The court was unwilling to indulge this attempt to draw a line between status and conduct, finding that this approach had been specifically rejected by the U.S. Supreme Court in the Martinez case, which involved a law school’s refusal to extend official recognition to a Christian student organization that excluded gay people from membership.

Elane’s more serious arguments were the First Amendment claims, since it seems clear that requiring the business to provide photography services for same-sex ceremonies does, to some extent, involve the people who run the business in “expressive activities” that violate their personal religious and moral views.  But the court found that a substantial body of legal precedent has held that commercial businesses can be required to comply with religiously-neutral anti-discrimination laws, such as the New Mexico statute in this case. 

In the context of free speech, the court analogized this case to the U.S. Supreme Court’s decision upholding the federal government’s requirement that law schools receiving federal funds allow military recruiters on their campuses, despite the law schools’ opposition to the military “don’t ask, don’t tell” policy in effect when that case was decided.  The schools complained that allowing recruiters on campus might appear to students to be an endorsement of the military’s policies, and would violate the expressive rights of the schools, but the Supreme Court held that the schools were free to disclaim any approval of the military policy and were not being compelled to endorse it through conduct.

A similar analysis applied to the free exercise claim.  The court noted that federal appeals courts have recently split over the question whether a business corporation can make any claim to free exercise of religion, an issued that seems headed to the U.S. Supreme Court.  But the court found no need to try to resolve that question, because it concluded that requiring Elane to offer photography services on a non-discriminatory basis did not impose an unconstitutional burden on free exercise.  “Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs,” wrote Justice Chavez. “They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.”

In a concurring opinion, Justice Richard C. Bosson gave an eloquent explanation of the rationale for the court’s opinion. 

“On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.

“In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.”

Alliance Defending Freedom, a law firm specializing in defending religious liberty and opposing gay rights claims, provided representation to the Huguenins in this case.  Julie Sakura and Sarah Steadman of Santa Fe and Tobias Barrington Wolff, a law profession from the University of Pennsylvania, represented Willock.  The case attracted considerable amicus support, including briefs from law professors, an association of wedding photographers, a New Mexico small businesses association, the ACLU of New Mexico, and the ACLU’s national LGBT Rights Project.