As widely covered in the media, the
Supreme Court decided with a healthy 7-2 majority that a baker’s sincerely held
religious views were improperly censored by a local civil rights commission in
violation of the First Amendment’s Free Exercise Clause when the commission
concluded that the baker had unlawfully discriminated on the basis of sexual
orientation in refusing to create and sell wedding cakes to same-sex couples on
the grounds that he did not want to endorse behavior that violated his conscience
and that gay marriage was then illegal in Colorado. Masterpiece
Cakeshop Ltd v. Colorado Civil Rights Commission,
No. 16-111 (6-3-18). The
Court did not address whether the baker was entitled to live his life and conduct his sole proprietor business
according to his conscience, but found that he
had been discriminated against by the government agency which was so blinded by
its pursuit of justice for the same-sex couple that it forgot that the baker
has civil rights, too. The Court was sympathetic
that his refusal took place before
same sex marriage was even legal in Colorado and before the Court itself upheld
the right of same sex couples to marry. It
was also influenced by evidence that he was willing to sell other baked goods, just
not wedding cakes. The more problematic
issue was that the government absolved other bakers of religious discrimination when they refused to create and bake cakes
with homophobic or anti-gay marriage themes (with religious quotes presumably
about marriage) and that one of the government officials disparaged and equated
the baker’s sincere convictions and conscience with slavery and the holocaust. Above all things, a government must remain
neutral in matters of religion, view point and conscience, and that was
entirely missing in this case as government officials wanted to publicize their
distaste for the baker’s convictions: “[T]he delicate question of when the free
exercise of his 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.”
According to the Court’s opinion several
of the commissioners were openly hostile to religion and religious dissenters
(notwithstanding that several of the initial 13 colonies were initially settled
by and because of religious dissent):
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.” Tr. 23. A few moments later, the commissioner restated
the same position: “[I]f a businessman wants 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.”
Another
of the commissioners went even further:
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 observed that the tension
between the first amendment and civil rights statutes has been and will remain
a difficult issue to resolve, not just for bakers, but for other artists and
sole proprietors. It recognized that exceptions will have to be made, but also
made clear that those exceptions cannot be too broad without violating the
rights of gay citizens:
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.
There were a number of concurring
opinions. The justices did not agree about the relevance of the other bakers
who refused to create and sell cakes which they found personally offensive
according to their own conscience. Some saw
their different treatment by the civil rights commission as discriminatory,
while others did not. Justice Kagan submitted
that making a special cake that disparages gay marriage is so unique that it
cannot be compared to a “regular” wedding cake that the baker refused to sell. She distinguished it from Justice Gorsuch’s view
that the “regular” wedding cake was a special cake to celebrate a same-sex
marriage. She joined the majority
opinion not because she felt that the other bakers should not have been treated
differently, but because of the reasoning
of the state agency reflected improper hostility towards religion. Justice Kennedy’s majority opinion described
it as follows:
Another indication of hostility is the
difference in treatment between Phillips’ case and the cases of other bakers
who objected to a requested cake on the basis of conscience and prevailed
before the Commission.
The Commission had found the cake
texts to be derogatory and hateful, giving those bakers the right to legally
refuse to create and bake those cakes.
The treatment of the conscience-based
objections at issue in these three cases contrasts with the Commission’s
treatment of Phillips’ objection. The
Commission ruled against Phillips in part on the theory that any message the
requested wedding cake would carry would be attributed to the customer, not to
the baker. Yet the Division did not
address this point in any of the other cases with respect to the cakes
depicting anti-gay marriage symbolism.
Additionally, the Division found no violation of CADA in the other cases
in part because each bakery was willing to sell other products, including those
depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips’
willingness to sell “birthday cakes, shower cakes, [and] cookies and brownies,”
App. 152, to gay and lesbian customers as irrelevant. The treatment of the
other cases and Phillips’ case could reasonably be interpreted as being
inconsistent as to the question of whether speech is involved, quite apart from
whether the cases should ultimately be distinguished. In short, the Commission’s consideration of
Phillips’ religious objection did not accord with its treatment of these other
objections.
. . . .
. . .A principled rationale for the difference
in treatment of these two instances cannot be based on the government’s own
assessment of offensiveness. Just as “no
official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion,” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), it
is not, as the Court has repeatedly held, the role of the State or its
officials to prescribe what shall be offensive.
. . . .
The
Constitution “commits government itself to religious tolerance, and upon even
slight suspicion that proposals for state intervention stem from animosity to
religion or distrust of its practices, all officials must pause to remember
their own high duty to the Constitution and to the rights it secures . . . . “
. . . It hardly requires restating that
government has no role in deciding or even suggesting whether the religious
ground for Phillips’ conscience based objection is legitimate or illegitimate.
NOTICE: This
summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can be changed or amended without notice. Readers should
not act upon this information without legal advice. If you have any questions
about anything you have read, you should consult with or retain an employment
attorney.
