This article was originally published on Peacock Panache, an LGBTQ news and opinion blog.
In a 7-2 decision announced today, the U.S. Supreme Court narrowly ruled in favor of Masterpiece Cakeshop in a case about public accommodation and whether individual religious views should and can supersede a protected group’s right to free market equal access. The actual decision offered no opinion on LGBTQ civil rights, however.
In the majority opinion, authored by Justice Anthony Kennedy, the high court noted the case presents “difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services.”
He added, “The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.”
While the decision is a narrow victory for the cake shop, it may also be a roadmap forward for progressive activists.
The Masterpiece Cake case actually began six years ago when David Mullins and Charlie Craig visited the now infamous bakery to purchase a cake for their upcoming wedding reception. The ACLU took the couple’s case and in 2014, after initially winning in courts, noted:
Mullins and Craig planned to marry in Massachusetts and then celebrate with family and friends back home in Colorado. Masterpiece owner Jack Phillips informed them that because of his religious beliefs the store’s policy was to deny service to customers who wished to order baked goods to celebrate a same-sex couple’s wedding.
“What should have been a happy day for us turned into a humiliating and dehumanizing experience because of the way we were treated,” said Mullins. “No one should ever have to walk into a store and wonder if they will be turned away just because of who they are.”
Long-standing Colorado state law prohibits public accommodations, including businesses such as Masterpiece Cakeshop, from refusing service based on factors such as race, sex, marital status or sexual orientation. Last year, an administrative judge upheld the Colorado Civil Rights Division’s finding of illegal discrimination by the bakery. Today’s decision from the Colorado Civil Rights Commission affirms the prior ruling. The commission also ordered a change of policy, staff training, and quarterly reporting to confirm that the bakery is not turning away customers due to sexual orientation. [SNIP]
Phillips admitted he had turned away other same-sex couples as a matter of policy despite Colorado’s law.
“Masterpiece Cakeshop has willfully and repeatedly considered itself above the law when it comes to discriminating against customers, and the Commission has rightly determined otherwise,” said Sara R. Neel, staff attorney with the ACLU of Colorado.
The couple, with the assistance of the ACLU, won their arguments as the case traveled up the legal ladder from the initial court hearing and hearing at the Colorado Civil Rights Commission through the Colorado Court of Appeals.
In each instance, judges ruled that cake shop owner Jack Phillips violated the state’s LGBTQ public accommodation protections in denying service based solely on the couple’s sexual orientation.
When the Supreme Court accepted Phillips’ petition despite denying a nearly identical case three years prior, court observers began assuming the worst.
The Road to the Supreme Court
When Supreme Court accepted the Masterpiece Cakeshop petition last summer, we noted:
Should Kennedy side with the conservative wing of the court in Masterpiece, two separate legal precedents will exist to support the creation of different classes of citizenry. So long as its couched in sincerely held religious belief, virtually all types of discrimination could feasibly be advanced through the courts using Masterpiece and Hobby Lobby as case law precedent.
David Savage of the LA Times argued as much in his analysis of the case noting:
The Colorado case is likely to become one of the court’s most contentious cases next term. It could decide whether business owners are allowed to cite their religious views as a reason for refusing to serve gay and lesbian couples. Potentially, it could sweep even more broadly, opening a religious exemption to civil rights laws that could allow discrimination against other groups.
The case, to be heard in the fall, could have a wide effect in states like California that prohibit discrimination against people based on their sexual orientation.
No federal law requires businesses to serve all customers without regard to their sexual orientation, but 21 states have “public accommodations” laws that prohibit discrimination against gays and lesbians.
More broadly, a victory could open up existing federal protections under the Civil Rights Act to further scrutiny as they have always been under attack using the same arguments presented in the Masterpiece Cakeshop petition. In particular, Jim Crow laws (that sanctioned race-based discrimination) were ultimately defended in courts using nearly identical religious freedom arguments.
That the court not only accepted Masterpiece – but held onto the petition long enough for Gorsuch to be seated so they could have four votes to accept it – is deeply disturbing and does not bode well for the future of LGBTQ civil rights.
It didn’t take long for the fears around the case to materialize as oral arguments in the Masterpiece Cakeshop case focused not on the broad issue of public accommodation but on narrow aspects of the lower court hearings.
Following oral arguments presented to the high court in December 2017, observers predicted a victory for the cake maker in being able to legally discriminate against LGBTQ people using his religious beliefs as a legal shield to circumvent state public accommodation law.
Following the 90 minute oral arguments before the U.S. Supreme Court today in the Masterpiece Cakeshop case, observers almost unanimously voiced concerns that the high court appears ready to side against LGBTQ public accommodation protections in lieu of granting a ‘religious liberty’ exception to business owners. Such a ruling would have a devastating effect on state and local level anti-discrimination laws meant to protect LGBTQ people from differential treatment.
Kennedy, who wrote the court’s 5 to 4 decision in 2015 saying gay couples have a constitutional right to marry, speculated about what might happen if a decision in baker Jack C. Phillips’s favor prompted requests for bakers across the country to refuse to make cakes for same-sex couples. Would the federal government feel vindicated? Kennedy asked.
On the flip side, just moments later, Kennedy sharply questioned Colorado Solicitor General Frederick R. Yarger. The justice seemed offended by a comment made during the deliberations of the Colorado Civil Rights Commission when one commissioner said: “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.”
At one point, Kennedy and some conservative justices raised the possibility that the proceedings against baker Jack C. Phillips had been infected by bias.
It would be this particular “possibility” that ultimately led seven of the nine sitting justices to rule in Jack Phillips’ favor. Using the argument that pointing out use of religious belief as a weapon to harm others – something Jack Phillips did when he used his religious beliefs to deny free market access to a gay couple – is a “despicable” form of “rhetoric,” the high court sided with the anti-gay cake maker.
Arguing that because the Colorado courts did not recognize Jack Phillips’ inherent right as a Christian to tell same-sex couples he would not serve them in his business open to the public, Kennedy appeared ready to side with the bakery and against LGBTQ people’s civil rights.
Noting the importance of the case, Justice Stephen Breyer commented during oral arguments that the high court should be careful as they do not want to “undermine every single civil rights law.”
But a decision allowing one exception to public accommodation law on the grounds of ‘religious liberty’ would be a Pandora’s box – something the left-leaning justices of the court pointed out.
They questioned who else in the business world could consider their product “art” protected by the First Amendment, offering the very slippery slope conservative organizations like Alliance Defending Freedom would indubitably seize upon in other cases they’re handing similar to the Masterpiece Cakeshop case.
Following those arguments, the high court clearly took Justice Breyer’s comments into account in finding a way to simultaneously rule in favor of Phillips while preserving the integrity of existing state and local public accommodation laws.
The Masterpiece Cakeshop majority decision is written as and is intended to be an “exception” case – a narrow decision not intended to be used as precedent in any future case. (Then again, that was the intent in Hobby Lobby and look how that turned out).
The court found:
As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments.
The high court added:
The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the [Colorado Civil Rights] Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism.
The decision here looks intentionally factbound to me: This is more about how the Colorado Commission considered Phillips’ particular case, and substantially less about whether there might or might not be a right under the constitution to refuse compliance with a neutral law forbidding discrimination on the basis of sexual orientation in public accommodations. In that respect, this holding is not going to resolve the underlying politically charged controversy.
The majority opinion’s introduction confirms this. It states, “Given all these considerations, 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.”
What’s unclear – and SCOTUSBlog appears to agree – is if Phillips will have to go through another round of legal hearings beginning at the level the high court found unacceptably biased (the state civil rights commission).
Justice Kagain’s concurring opinion confirms the narrow-but-solid belief that Phillips did not receive an unbiased hearing. Arguing Colorado has the right to protect LGBTQ people, they “can treat a baker who discriminates based on sexual orientation differently from a baker who does not” adding the caveat that any hearing or case must “not infected by religious hostility or bias.”
Summing up the high court’s ruling, SCOTUSBlog’s Eric Citron added:
One version of the question presented in Masterpiece is: “Does the Constitution give wedding cake bakers a right to refuse service to homosexual couples on the basis of a religious objection, even if a State generally prohibits discrimination in public accommodations on the basis of sexual orientation.” That is the “Right not to bake a cake” version. The Court does not answer that question. Instead it holds that the way the Colorado commission considered Mr. Phillips’ case showed substantial hostility toward religion. That preserves the possibility that a State could enact a law prohibiting discrimination against homosexual couples and constitutionally apply it to a baker who refused service to a gay couple.
Which is to say, today’s decision is not the doomsday scenario many thought the case would be.
This may come off as an unpopular take, but the Supreme Court’s decision in Masterpiece Cakeshop is not a terrible thing. While in the short term Jack Phillips and the religious right wing community have cause to celebrate, the high court actually established some fairly strong groundwork and guidelines activists can work with to win future cases.
For starters, they clearly established the cause for their decision: bias. The state commission that heard Phillips’ case allegedly demonstrated bias against his religious beliefs when hearing the case – at least, that’s how the conservative side of the high court interpreted it. In the court’s majority and concurring opinions, this is repeatedly referenced.
The opinion’s first page establishes this, in fact:
The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.
While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion.[Emphasis Mine]
Kennedy took careful measure to cite the rights and privileges LGBTQ couples hold as recognized by the historic Obergefell v. Hodges ruling while balancing that with the notion that courts must be unbiased in reaching conclusions on breaches of those rights and privileges.
In his opinion, Justice Kennedy explicitly noted, “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.”
This is clearly a road map for any state, going forward, to ensure their Tenth Amendment right to offer legal protection to LGBTQ people meets constitutional scrutiny.
On the flip side, the Masterpiece Cakeshop decision once again punts on making any substantial statement on LGBTQ civil protections and will undoubtedly be used by the anti-gay religious right to continue their legal battle against LGBTQ civil rights.by