Supreme Court Finds Violation of Free Exercise Clause Based on Direct Evidence and Disparate Treatment, but Does Not Define the Limits

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.

Sixth and Third Circuits Address Employment Discrimination Against Gay and Lesbian Employees.

At the end of August, the federal Sixth and Third Circuit Courts of Appeal both addressed the same issue: whether gay and lesbian employees could pursue religion discrimination claims under Title VII against employers who discriminated against them on account of their sexual orientation. In both cases, the Courts refused to permit the employees to pursue religion discrimination claims under Title VII on the grounds that they were not being discriminated against because of their religious or other voluntary beliefs, but rather, because of who they were. However, in both cases, the Court found possible alternative theories of relief for the plaintiffs. In the Sixth Circuit, the Court found the plaintiffs could maintain a constitutional First Amendment claim against the non-profit employer on account of legislative appropriations to that specific agency. Pedreira v. Kentucky Baptists Homes for Children, Inc., No. 08-5583 (6th Cir. 8/31/09). In the Third Circuit, the court found the plaintiff could pursue a sex-stereotyping claim on the grounds that he was being discriminated against for not being a stereotypical macho, blue-collar man. Prowel v. Wise Business Forms, Inc., No. 07-3997 (3rd Cir. 8/28/09).

Title VII Claims

The Pedreira plaintiff was terminated from her position with the non-profit children’s home “because her admitted homosexual lifestyle is contrary to Kentucky Baptist Homes for Children core values.” After her termination, the employer announced a policy of refusing to employ any homosexuals. She brought a claim under the Kentucky Civil Rights Act, which was analyzed as a Title VII claim. The Court, however, found that she failed to state a claim for relief: “Pedreira does not allege that her sexual orientation is premised on her religious beliefs or lack thereof, nor does she state whether she accepts or rejects Baptist beliefs. While there may be factual situations in which an employer equates an employee’s sexuality with her religious beliefs or lack thereof, in this case, Pedreira has “failed to state a claim upon which relief could be granted.” See also Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (Title VII does not encompass discrimination on account of sexual orientation). In short, the plaintiff did not allege that her sexual orientation was a voluntary decision akin to religious beliefs and practices. Another plaintiff brought a failure to hire claim on the grounds that she did not apply for a social worker opening because of the employer’s homophobic policy. The court surprisingly dismissed that claim on the grounds it was speculative (in that she never applied for a job) instead of on the grounds that such discrimination is not actionable under either Title VII or the KCRA. Thus, the possibility remains that the Sixth Circuit could recognize a case of sexual orientation discrimination under Title VII under a different factual situation.

The Prowell plaintiff was involuntarily laid off after he complained about workplace harassment on account of his sexual orientation. He filed suit, claiming that he was unlawfully discriminated against in violation of Title VII on account of his sex and religion. Like the Pedreira case, the Third Circuit dismissed the religion discrimination claim because his testimony showed that he was discriminated against on account of his sexual orientation, not his beliefs or the religious beliefs of others. Like the Sixth Circuit, the Third Circuit had previously determined that Title VII did not encompass discrimination on account of sexual orientation. Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir.2001).


However, the Third Circuit found that the Prowell plaintiff could pursue a sex stereotyping claim to the same extent that a woman could. The plaintiff described himself as an “effeminate man” and claimed he did not fit in with his other male co-workers because he did not conform to gender stereotypes. Because the facts of the harassment showed that the plaintiff had been harassed about his non-macho mannerisms and lifestyle even before his sexual orientation became public knowledge, he could show that his discrimination was related to the fact that he did not conform to societal stereotypes about how a “real” man is supposed to act. Title VII has for some years now prohibited discrimination against women who did not fit societal stereotypes of “ladies.”

First Amendment Claims

In Pedreira, the plaintiffs also brought a taxpayer suit challenging state support of a non-profit with a religious mission on the grounds that it violated the Establishment Clause of the First Amendment. “In their amended complaint, they refer to the Kentucky statutes authorizing the funding of services such as KBHC. However, nowhere in the record before the district court did the plaintiffs explain what the nexus is between their suit and a federal legislative action. The district court found that the plaintiffs’ allegations were more akin to those in Hein, which raised a general Establishment Clause challenge to federal agencies’ use of federal money to promote the President’s faith-based initiatives.” In the end, the Court determined that the plaintiffs lacked standing as federal taxpayers, but not as state taxpayers.

“As with federal taxpayer standing, the plaintiffs must demonstrate “a good-faith pocketbook” injury to demonstrate state taxpayer standing . . . . The plaintiffs point to the alleged $100 million received by KBHC from Kentucky as the requisite “pocketbook” injury . . . . the Kentucky legislature also appropriated sums of money specifically to KBHC. 2005 Ky. Laws Ch. 173 (HB 267) (H)(10)(5), available at http://www.lrc.ky.gov/record/05RS/HB267.htm. Unlike in the federal taxpayer analysis,the plaintiffs have alleged a “concrete and particularized” injury.”

In addition, “the plaintiffs have sufficiently demonstrated a link between the challenged legislative actions and the alleged constitutional violations, namely that Kentucky’s statutory funding for neglected children in private childcare facilities knowingly and impermissibly funds a religious organization. As discussed above, the plaintiffs have pointed to Kentucky statutory authority, legislative citations acknowledging KBHC’s participation, and specific legislative appropriations to KBHC. Through these specifications, the plaintiffs have demonstrated a nexus between Kentucky and its allegedly impermissible funding of a pervasively sectarian institution.”

Insomniacs can read the full court decisions at http://www.ca6.uscourts.gov/opinions.pdf/09a0316p-06.pdf and http://www.ca3.uscourts.gov/opinarch/073997p.pdf.

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 change or be 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.