
Photo credit: Tim Sackton (CC-By-SA 2.0)
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 Amendmentâs free exercise clause. I am not surprised the Court found in Jack Phillipsâ (the owner of Masterpiece Cakeshop) favor (the justicesâ 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 Coloradoâs 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 âthe law must be applied in a manner that is neutral toward religion.â
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 weâll 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 Commissionâs hostility toward Phillips than the unequal application of the law.
âPhillips was entitled to the neutral and respectful consideration of his claims in all circumstances of the case,â Kennedy wrote. âThe neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights Commissionâs treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.â
âAt 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 Coloradoâs business community,â he added.
He addressed one commissionerâs statements at length:
To describe a manâs faith as âone of the most despicable pieces of rhetoric that people can useâ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical â something insubstantial and even insincere. The commissioner even went so far as to compare Phillipsâ 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 Coloradoâs anti-discrimination law â a law that protects discrimination on the basis of religion as well as sexual orientation.
I agree the Commissionâs treatment of Phillips was despicable, and yes it is troubling that the Colorado Court of Appeals overlooked that. Iâm 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 Commissionâs action.
(T)he only reason the Commission seemed to supply for its discrimination was that it found Mr. Phillipâs religious beliefs âoffensive.â⊠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 thereâs no indication the bakers actually intended to refuse service because of a customerâs 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).
âIn both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers,â Gorsuch added.
âNothing in the Commissionâs opinions suggests any neutral principle to reconcile these holdings. If Mr. Phillipsâs objection is âinextricably tiedâ to a protected class, then the bakersâ objection in Mr. Jackâs case must be âinextricably tiedâ to one as well,â he said.
Gorsuch said the Commission couldnât 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.
âIt 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. Jackâs case the choice to refuse to advance a message, they deemed offensive to their secular commitments. That is not neutral,â Gorsuch stated.
Justice Clarence Thomas also wrote a concurring opinion.
âAlthough the Commissionersâ comments are certainly disturbing, the discriminatory application of Coloradoâs public-accommodations law is enough on its own to violate Phillipsâ rights,â he wrote.
2. Had Phillips denied creating a same-sex wedding cake post-Obergefell would the Supreme Court have ruled in his favor?
Iâm not so sure.
Here is the most troubling aspect of Justice Kennedyâs opinion:
Phillipsâ 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? Wouldnât it be understandable then?
Thatâs chilling.
Justice Thomas had âI told you soâ 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 âlong has been held -and continues to be held â in good faith by reasonable and sincere people here and throughout the world.â⊠If Phillipsâ continued adherence to that understanding makes him a minority after Obergefell, that is all the more reason to insist that his speech be protectedâŠ
In Obergefell, I warned that the Courtâs decision would âinevitabl[y]⊠come into conflictâ with religious liberty, âas individuals⊠are confronted with demands to participate in and endorse civil marriages between same-sex couples.â
He was right, and based on this particular majority opinion will continue to be right.