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: