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Supreme Court May Decide Another Gay Wedding Cake Case

Posted on: October 26th, 2018 by Art Leonard No Comments

Melissa and Aaron Klein, proprietors of the now-defunct “Sweetcakes by Melissa” custom-cake business in Gresham, Oregon, filed a petition for certiorari on October 19, asking the U.S. Supreme Court to strike down the $135,000 penalty imposed by Oregon authorities for their refusal to make a wedding cake for Rachel Cryer and Laurel Bowman in January 2013. Klein v. Oregon Bureau of Labor and Industries, No. ____ , seeking review of Klein v. Oregon Bureau of Labor and Industries, 410 P.3d 1051, 289 Or. App. 507 (2017), rev. denied by Oregon Supreme Court, June 21, 2018.  The Kleins claim in their Petition that the Oregon ruling violates their constitutional rights of free exercise of religion and freedom of speech.

The Kleins also claim that they did not discriminate against the lesbian couple because of their sexual orientation, contrary to the finding of the Commission that was affirmed by the state appeals court. And, perhaps most consequentially, they asked the Supreme Court to consider whether to overrule Employment Division v. Smith, 494 U.S. 872, which holds that the Free Exercise Clause does not exempt people with religious objections from complying with state laws of general application that do not specifically target religious practices.

The Kleins ask the Court to revisit a controversy it confronted last year in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).  Both Oregon and Colorado forbid businesses in the state from discriminating against customers because of their sexual orientation.  In Masterpiece, baker Jack Phillips refused, initially on religious grounds, to make a wedding cake for a gay male couple, and Colorado officials found that he had violated the law, rejecting his First Amendment defense.  In his appeal of the Colorado Court of Appeals’ ruling affirming the Commission, Phillips asserted protection under both the Free Exercise and Free Speech Clauses of the First Amendment, claiming that the government may not compel a “cake artist” to express a message contrary to his religious beliefs, both as a matter of freedom not to speak and protection for religious freedom.

The Court did not rule directly on these questions in disposing of Phillips’ appeal, instead deciding that comments by some of the Colorado Civil Rights Commissioners, and the Commission’s rejection of some other discrimination claims filed by a provocateur who charged bakers with discriminating against him by refusing to make explicitly anti-gay cakes, showed that the state had not afforded an appropriately “neutral forum” to Phillips for consideration of his defense. On that basis, the Court reversed the state court and commission rulings and dismissed the case against Phillips.  However, in his opinion for the Court, Justice Anthony Kennedy reaffirmed that people and businesses do not enjoy a general free exercise right to refuse to comply with state laws of general application that do not specifically target religion.  Kennedy’s opinion avoided dealing with Phillips’ argument that as a “cake artist” he also had a valid free speech claim.  Two justices dissented, while others concurred in the result.

Justice Kennedy cited Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968), to support the Free Exercise point.  In that case, a restaurant owner cited his religious beliefs to refuse to comply with Title II of the Civil Rights Act of 1964, which forbids businesses affecting commerce from refusing to serve customers because of their race.  The Supreme Court affirmed the 4th Circuit, which had reversed the district court’s refusal to enjoin the restaurant’s discriminatory policy.  Kennedy could have just as well cited Employment Division v. Smith, which the Colorado Commission’s Administrative Law Judge had cited in his Masterpiece ruling, but Piggie Park may have seemed more apposite, as it involved enforcement of a general anti-discrimination law over religious objections. Smith, by contrast, involved a Native American man who had consumed peyote in a religious ritual and subsequently flunked his employer’s drug test, suffering discharge and denial of unemployment benefits.  The Supreme Court rejected Smith’s religious freedom challenge to his disqualification for benefits, finding that the incidental burden this posed on his free exercise of religion did not excuse him from complying with his employer’s lawful policy against employee drug use or require that an exception be made to the state’s unemployment insurance law, which denies benefits to employees discharged “for cause.” In a concurring opinion in Masterpiece Cakeshop, Justice Neil Gorsuch (joined by Justice Clarence Thomas) described the Smith ruling as “controversial,” implying that it deserved reconsideration.

The Kleins have followed up on Gorsuch’s signal by asking the Court to reconsider Smith or, alternatively, to “reaffirm” some comments Justice Antonin Scalia made in his opinion for the 5-4 Court majority in Smith, suggesting that when somebody raises a free exercise of religion claim in a case that also implicates “other fundamental rights,” such as freedom of speech, the Court should apply “strict scrutiny” to the challenged state action in order to vindicate the other fundamental right.  The Klein’s Petition points out that lower federal courts are divided about whether to follow Scalia’s suggestion for handling so-called “hybrid rights” cases – a suggestion the Oregon Court of Appeals expressly rejected in the Kleins’ case — and urges the Court to resolve a split of lower court authority by taking this case.

The Klein’s Petition also argues that they did not discriminate against Cryer and Bowman because of their sexual orientation; they would refuse to make a cake for a same-sex wedding regardless of the sexual orientation of the customer who sought this service. They related that just a few years earlier, they had produced a wedding cake ordered by this very lesbian couple, to celebrate the marriage of Rachel’s mother to a man, and that it was because Rachel and Laurel “liked the Kleins’ work so much that they wanted to commission a custom cake from Sweetcakes for their own wedding.”  The Petition also notes that the women quickly found another baker to make their wedding cake, and that a celebrity chef even gave them a second custom-designed cake for free.

On the other hand, it was reported that when the Kleins posted about the discrimination claim on their Facebook.com page, showing the image of the actual discrimination charge with contact information for the lesbian couple, the women received nasty messages, including death threats, which contributed to the Oregon Bureau’s decision to assess substantial damages for emotional distress.

The Kleins devote a large part of their Petition to arguing that they are “cake artists” whose creations are expressive works, entitling them to the same vigorous constitutional free speech protection normally provided to artists in less digestible media. As such, they claim the Oregon court erred in failing to apply strict scrutiny to the Bureau’s decision against them, as the Supreme Court has repeatedly held that the First Amendment protects an individual’s refusal to speak a message with which they disagree, the prime example being the Court’s unanimous decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in which, overruling a 4-3 decision by the Massachusetts Supreme Judicial Court, the Court held that parade organizers had a right to exclude a group whose message they did not desire to include in their parade, which the Court deemed to be a “quintessential expressive association.”  Whether the Court is willing to deem baking a wedding cake the free speech equivalent of staging a parade with thousands of people on a state holiday is an interesting question.

If the Court grants the Petition, the most consequential issue could be the Kleins’ challenge to Employment Division v. Smith, in which the Court cast aside decades of First Amendment precedent to hold that general laws that place a heavy burden on somebody’s free exercise of religion must generally be obeyed nonetheless.  Under prior rulings, the government had the heavy burden of meeting the “compelling government interest” test in order to justify applying a general law that incidentally but substantially burdened somebody’s free exercise of religion.

Justice Gorsuch was correct in calling Smith a “controversial” decision. Congress was so incensed by Justice Scalia’s opinion (which drew dissents from liberal members of the Court) that a bipartisan coalition soon passed the first version of the Religious Freedom Restoration Act (RFRA), introduced by Chuck Schumer (House) and Ted Kennedy (Senate) and eagerly signed into law by Bill Clinton in 1993.  RFRA provided that any law imposing a substantial burden on somebody’s free exercise of religion could be challenged using the strict scrutiny standard.  The Supreme Court subsequently ruled that Congress did not have authority to overrule the Court’s constitutional ruling, but the Court later upheld a revised version of RFRA that applied only to federal laws that burden religious free exercise, holding that Congress could create a legislative exception to federal laws when they incidentally impose a substantial burden on religious exercise.  Federal RFRA provided the example for more than twenty states to pass their own versions, similarly restricting the application of their state and local laws.  State court decisions in several other states have interpreted their state constitutional religious freedom provisions to the same effect, rejecting the Supreme Court’s narrower interpretation of Free Exercise in Smith.

If the Supreme Court were to overrule Smith and restore the previous precedents, RFRA and its state counterparts would be rendered superfluous, as the First Amendment would once more restrict states from enforcing general laws that substantially burden a person or business’s free exercise of religion in the absence of a compelling state interest.  The impact on LGBT rights could be enormous, prompting new claims that application of anti-discrimination laws to people and businesses with religious objections to LGBT people violates the businesses’ constitutional rights – one of the claims the Kleins are pursuing in this case.

Oregon state officials have thirty days to file a response to the Petition, and Petitioners can file a Reply to the Response, which means that the Supreme Court’s file in the case will not be completed for consideration by the Court until at least early December and maybe longer if the Oregon Attorney General’s Office requests an extension of time to respond. But if the petition is granted in December, that would leave plenty of time for the Court to hear arguments and render a decision during its current term, which runs through the end of June.

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.