On Monday, the United States Supreme Court ruled in “Masterpiece Cakeshop versus Colorado Civil Rights Commission”, a much-anticipated opinion that was supposed to give the several states guidance on how the court handles the intersection of religious liberty and unlawful discrimination.
The opinion and its reasoning turned out a bit different than many anticipated, though there was growing agreement in the legal community that the court would have difficulty and might kick the can down the road for another time.
But while many are saying that “kicking the can” is exactly what happened, and it’s true that the opinion has little precedential weight, it is still an important opinion from which we can learn many lessons regarding the way a future court might handle this kind of issue – and, therefore, the way society is more-or-less expected to govern itself.
I would like to review every word of the opinion with you but, fortunately or unfortunately, the opinion, the concurrences, and the dissents, total almost 19,000 words. Instead of nearly 3 hours of review, let’s try and sum this up in less than twenty minutes.
The very basics are that Colorado, like many states and the federal government, prohibits discrimination against people based on certain immutable traits, traits like gender, race, or sexual orientation.
Colorado, as a state in the union, is also subject to the U.S. Constitution’s First Amendment which prohibits the government from placing unnecessary restrictions on religious beliefs.
The situation in this case occurred in 2012 when a couple, Charlie Craig and Dave Mullins, who identify as homosexual, requested a wedding cake from Masterpiece cakeshop proprietor Jack Phillips. Phillips informed the couple that he does not “create” wedding cakes for same-sex weddings. He explained, “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.” The couple left the shop without further discussion. Craig’s mother followed up the next day; Phillips further explained his religious opposition to same-sex marriage.
Now this is important. While the court takes very seriously the fact of Phillips’ sincerely held religious beliefs, they must also balance Colorado’s anti-discrimination act, known as the CADA. The act prohibits discrimination on the basis of sexual orientation as well as other characteristics. The “State and its governmental entities [have the authority] 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.”
That prohibition applies to any place of public accommodation which broadly includes any quote “place of business engaged in any sales to the public and any place offering services . . . to the public,” but excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes.”
In Colorado, discrimination complaints are initially handled by the Colorado Civil Rights Division, who investigates the veracity of each claim, and then turns over meritorious claims to the Colorado civil rights commission.
The division found Craig and Mullins claims meritorious and turned them over to the commission. It said that “Phillips had declined to sell custom wedding cakes to about six other same-sex couples [on the basis of their orientation].” The commission sent the case to an administrative judge for a formal hearing.
Now, remember that people also have “the right [. . .] to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.” According to the Court, “The freedoms asserted [by Philips] are both the freedom of speech and the free exercise of religion.”
This is very important. The court takes very seriously the sincerity of Jack Phillips religious beliefs. They explain that he has been a devout Christian his whole life; his main goal in life is to be obedient to Christ; and that he seeks to honor God through his work.
“Phillips raised two constitutional claims before the [judge]. He first asserted that applying CADA in a way that would require him to create a cake for a same-sex wedding would violate his First Amendment right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed.” He “also contended that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion . . . ”
“The [judge] ruled against Phillips and the cakeshop and in favor of Craig and Mullins on both constitutional claims.” The Judge said “that preparing a wedding cake is [not] a form of protected speech and  that creating Craig and Mullins’ cake would [not] force Phillips to adhere to “an ideological point of view.” The Judge also found Colorado’s anti-discrimination law to be a non-discriminatory law of general application.
The Commission agreed and Ordered Philips to make cakes for same-sex couples like he would for heterosexual couples, along with staff training, changes to company policies, and two years of compliance reports.
Philips appealed. The appeals court rejected Philips arguments. The Colorado Supreme Court declined to hear the case.
Writing for the United States Supreme Court, Justice Kennedy writes:
“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights.”
“At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” As this Court observed in Obergefell v. Hodges, (2015), “[t]he 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.”
“Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such 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.”
“When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”
“Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court’s precedents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law.”
“[T]he baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way consistent with his religious beliefs.”
The Court found that storekeepers did have a right under Colorado law “to decline to create specific messages the storekeeper considered offensive. Indeed, [. . .] on at least three occasions, [the Commission concluded] that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages.”
But, unfortunately for us, we never get to the meritorious consideration of the rights of the couple and the rights of the shopkeeper. “On May 30, 2014, the seven-member Commission Civil Rights Commission [had] convened publicly to consider Phillips’ case. At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. 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.”
On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated:
“I would also like to reiterate what we said in the hearing or the last meeting. 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.”
The Court continued: “To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.”
The Court noted that no objection or correction to these comments came at any time.
They found that Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. The Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.”
“For the reasons just described, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” That “hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decision maker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.”
And then the court says what I believe is the most important line in this entire case:
“[T]hese 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.”“The outcome of cases like this in other circumstances must await further elaboration in the courts.”
The Court reverses the decision of the Colorado Court of Appeals and therefore the Colorado civil rights commission, eliminating the discrimination charges against Jack Phillips.
And that’s it. We don’t get a ruling on exactly what the tolerance and requisite balancing of sincere religious beliefs and anti-discrimination laws. Will have to wait until other issues arise and make it through the court system before we potentially receive another ruling.
And who knows how long that might be? It’s not like people were waiting on this ruling to put their “no gays allowed” signs back up in their store windows. . . Something that took exactly 2 days at Amyx hardware and roofing supplies in Tennessee. Link in the description. After about two days of backlash, the hardware store changed its message to “We reserve the right to refuse service to anyone who would violate our rights of freedom of speech & freedom of religion.”
To me, this ruling, while not precedential in the traditional sense, does offer persuasive guidance that future courts should incorporate into their interpretations of antidiscrimination laws, free speech, and religious liberty.
This ruling seems to call for tolerance in the legal sense. Citizens need to be allowed to exist in an economy without facing discrimination at every turn and citizens also need to be allowed to practice their sincerely held religious beliefs without also facing unlawful discrimination.
Thus the court seems to affirm that both rights are equally valid. That means the “no gays allowed” sign would be considered intolerant and an illegal way to express one’s sincerely held religious beliefs. The hardware store owner would only be allowed to discriminate against homosexuals so long as his discrimination is because of a sincerely held religious belief that would also stand up to governmental scrutiny if tested by a court. Insincerely held “religious” beliefs in name only would not withstand scrutiny and could qualify as illegal discrimination.
And, even a sincerely held religious belief may not overcome anti-discrimination laws if there isn’t an element of speech or expression in the selling of the goods or providing of the services. Thus, the hardware store may not be allowed to deny service to gay people simply because there is no element of speech or expression in the selling of tools and home hardware.
But, likewise, “equal rights” does not mean equal-rights-extinguish-individual-religious-liberty; society must find a balance between requiring business owners to suspend their sincerely held religious beliefs while also upholding the right of citizens to not be subject to daily indignities in the marketplace.
So I feel that the court is calling for mutual tolerance, respect, and understanding of each other’s right to exist – a call that I think is sadly needed today, a time of seemingly great turmoil and divisiveness between people who are supposed to be standing united as the several states of a greater union, and, in my personal opinion, as citizens of a world that must coexist for many years to come.
In summary, gay people shouldn’t have to suffer indignities on a daily basis while participating in an market, and citizens need to be tolerant, or not unduly disrespectful, of each other’s sincerely held religious beliefs.
It’s possible for sincerely held religious beliefs to override anti-discrimination laws when the good or service offered is created by the storekeeper’s speech or expression, but those religious beliefs do not override when the storekeeper’s speech or expression is not part of the good or service.
None of this is black letter law or precedent. Instead, this is all guidance to be cited further down the road if and when the next genuine case or controversy presents itself.
Obviously, I’ve skipped a LOT of the Court’s history and reasoning, as well as two concurring opinions and two dissenting opinions. If you’d like to read those, I have them up on lawfulmasses.com.
AND, your favorite patent attorney, Kurt Muller, has also made a video for Lawful Masses which I’m posting simultaneously with this one. Please check his video out for another perspective on this remarkable case.
This video and the Lawful Masses community are made possible by your support. Please visit Patreon.com/ljfrench for more information on becoming a monthly supporter yourself.
Masterpiece Cakeshop Supreme Court Opinion: [pdf-embedder url=”http://lawfulmasses.com/wp-content/uploads/securepdfs/2018/06/16-111_j4el.pdf” title=”Masterpiece Cakeshop Supreme Court Opinion”]