Two Concerns About the Supreme Court’s Masterpiece Cakeshop Ruling

The Supreme Court released its much-anticipated ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission on Monday morning. The Court found in a 7 to 2 decision that Colorado Civil Rights Commission did violate the First Amendment’s free exercise clause. I am not surprised the Court found in Jack Phillips’ (the owner of Masterpiece Cakeshop) favor (the justices’ statements during oral arguments led me to think it was going to be a favorable ruling), but that they did so with such a firm majority.

I am pleased that the Court ruled in Mr. Phillips favor. This decision is a win. Had it gone the other way it would have been a terrible setback for religious liberty.

So this is a victory, but this ruling is not the watershed decision many of us hoped it would be.

It did not strike down Colorado’s SOGI law. It did not require an exemption for religious liberty or religious conscience. What the opinion says is that the free exercise clause demands that “the law must be applied in a manner that is neutral toward religion.”

That is a welcome statement, and I think the ruling will have states consider how they treat complaints related to Sexual Orientation/Gender Identity (SOGI) laws. However, this is not a deciding blow, and we’ll continue to see cases like these because there is a lot of ambiguity.

That said, I have two concerns about the majority opinion written by Justice Anthony Kennedy that could have negative implications in future court cases.

1. There is more concern about the Commission’s hostility toward Phillips than the unequal application of the law.

“Phillips was entitled to the neutral and respectful consideration of his claims in all circumstances of the case,” Kennedy wrote. “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 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,” he added.

He addressed one commissioner’s statements at length:

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.

I agree the Commission’s treatment of Phillips was despicable, and yes it is troubling that the Colorado Court of Appeals overlooked that. I’m glad that Justice Kennedy affirms that government should not disparage people of faith like that.

That said, would Justice Kennedy be ok with their decision had they been respectful and kind towards Phillips? Do their actions pass strict scrutiny by being nice?

Can the state restrict our right to religious conscience and the freedom to act on a religious belief that may be unpopular as long as they are nice?

Justice Neil Gorsuch in a concurring opinion points out the apparent problem with the Commission’s action.

(T)he only reason the Commission seemed to supply for its discrimination was that it found Mr. Phillip’s religious beliefs “offensive.”… That kind of judgmental dismissal of a sincerely held religious belief is, of course, antithetical to the First Amendment and cannot begin to satisfy strict scrutiny. The Constitution protects not just popular religious exercises from condemnation of civil authorities. It protects them all.

He addressed how the Commission treated a similar case before them except, in this case, they supported homosexual bakers who denied creating a custom cake with anti-same-sex marriage message on it.

The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending only to honor a personal conviction. To be sure, the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. We know this because all of the bakers explained without contradiction that hey would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else).

“In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers,” Gorsuch added.

“Nothing in the Commission’s opinions suggests any neutral principle to reconcile these holdings. If Mr. Phillips’s objection is ‘inextricably tied’ to a protected class, then the bakers’ objection in Mr. Jack’s case must be ‘inextricably tied’ to one as well,” he said.

Gorsuch said the Commission couldn’t have it both ways.

He said in both cases that came before the Commission the bakers wanted to avoid conveying approval of the message with which they disagreed.

“It is precisely that approval that Mr. Phillips intended to withhold in keeping with his religious faith. The Commission denied Mr. Phillips that choice, even as it afforded the bakers in Mr. Jack’s case the choice to refuse to advance a message, they deemed offensive to their secular commitments. That is not neutral,” Gorsuch stated.

Justice Clarence Thomas also wrote a concurring opinion.

“Although the Commissioners’ comments are certainly disturbing, the discriminatory application of Colorado’s public-accommodations law is enough on its own to violate Phillips’ rights,” he wrote.

2. Had Phillips denied creating a same-sex wedding cake post-Obergefell would the Supreme Court have ruled in his favor?

I’m not so sure.

Here is the most troubling aspect of Justice Kennedy’s opinion:

Phillips’ dilemma was particularly understandable given the background of legal principles and administration of the law in Colorado at that time. His decision and his actions leading to the refusal of service all occured in the year 2012. At that point, Colorado did not recognize the validity of gay marriages performed in its own State… At the time of the events in question, this Court had not issued its decisions either in United States v. Windsor… or Obergefell. Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State.

So what? Had he denied this couple in 2016 his argument would be weaker? Wouldn’t it be understandable then?

That’s chilling.

Justice Thomas had “I told you so” moment in his concurring opinion addressing this:

This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individuals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage “long has been held -and continues to be held – in good faith by reasonable and sincere people here and throughout the world.”… If Phillips’ continued adherence to that understanding makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected…

In Obergefell, I warned that the Court’s decision would ‘inevitabl[y]… come into conflict” with religious liberty, “as individuals… are confronted with demands to participate in and endorse civil marriages between same-sex couples.”

He was right, and based on this particular majority opinion will continue to be right.