Supreme Court Ducks Freedom of Religion vs LGBT Discrimination Question in Colorado Baker Case

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jun 16, 2018

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Gay Wedding CakeA Colorado baker who refused to deliver a wedding cake to a gay couple won a victory in the Supreme Court; however, the Court kept its ruling limited to the facts of the case, declining to establish a standard by which business owners’ religious-based objections to serving same-sex couples can be evaluated in the future. Advocates for religious freedom, free speech, and LGBT rights had hoped the Court would use the facts to provide clarity regarding the relationship between religious businesses and gay clientele, but a narrowly written opinion from Justice Kennedy left both sides dissatisfied.

Supreme Court Rules in Favor of Colorado Baker

In 2012 baker Jack Phillips of Denver, Colorado refused to bake a wedding cake for Charlie Craig and Dave Mullins because Phillips is a devout Christian who does not support same-sex marriage.  Craig and Mullins filed a claim under the Colorado Anti-Discrimination Act (CADA), which prohibits “places of public accommodation” from refusing service to customers based on several criteria, including sexual orientation.

After a series of administrative hearings and appeals, the Colorado Civil Rights Commission rejected Phillip’s free speech and free exercise of religion claims, found him in violation of CADA, and ordered him to sell his products to same-sex couples, undergo CADA training, and provide regular compliance reports for two years.

Phillips appealed the Commission’s ruling to the Supreme Court arguing that he was discriminated against because of his religious beliefs, and that his right to freedom of expression was violated by the ruling.  In a 7 – 2 split, the Court agreed that Phillips was a victim of religious-based discrimination and found that the charges against him violated the Constitution.  Writing for the majority, Justice Anthony Kennedy — who has written key opinions advancing LGBT rights and the right to freedom of speech — explained in the decision that the majority ruled for Phillips because the Commission failed in its duty to administer the law in a neutral or respectful fashion, and, in fact, made statements that showed an impermissible discrimination against religion.

By pointing directly to statements made by members of the Civil Rights Commission, the majority opinion was able to decide the case on its unique facts, and not deliver a more broadly applicable ruling on freedom of religion, free speech, or anti-discrimination towards the LGBT community.

Masterpiece Cakeshop Opinion Avoids Big Questions

Kennedy, joined by Chief Justice Roberts and Justices Breyer, Alito, Kagan, Gorsuch, and Thomas in the judgment, narrowly tailored his opinion to apply directly to the Commission’s behavior during the administrative review of Phillips’s case.  According to Kennedy, the Civil Rights Commission stepped over the line by delivering what he called “inappropriate and dismissive comments” regarding Phillips’s religious freedom claim.  Specifically, the majority took issue statements made by the commissioner that “religious beliefs cannot be legitimately carried into the public sphere or commercial domain” and “freedom of religion … has been used to justify all kinds of discrimination through history, whether it be slavery, whether it be the Holocaust.”  The commissioner also called freedom of religion claims “despicable pieces of rhetoric that people can use their religion to hurt others.”

Justice Kennedy and the majority held that these statements combined with past Commission rulings which were favorable to businesses that cited conscious-based objections to denying service to anti-gay religious customers demonstrated discrimination against Phillips because of his religious beliefs, which is a violation of the Constitution.  To the frustration of advocates on both sides; however, the Court made a point to state that their ruling in Masterpiece Cakeshop did not set a benchmark defining the relationship between free speech, religious liberty, and LGBT anti-discrimination law.

The Future of the Speech, Religion, and LGBT Anti-Discrimination Debate

Although the majority opinion did not promulgate a legal guideline, the Justices did not hesitate to contribute their thoughts on the matter in the form of concurring opinions that, while not central to the ruling, are suggestive for future cases.  Notably, Justices Ginsberg and Sotomayor dissented from the majority, writing that the statements made by the Commission which the majority relied upon did not change the fact that Phillips discriminated against Craig and Mullins based on sexual orientation.

Two competing opinions, one from Justices Kagan and Breyer and one from Justices Gorsuch and Alito, debated the comparison between a baker refusing to bake a cake with a religious-based anti-gay message and a baker refusing to bake a cake with a pro-same-sex marriage message.  Kagan and Breyer argued that discriminating against a religious message is not discrimination and distinguished the two scenarios, whereas Gorsuch and Alito saw the two situations as parallel.  This debate, while not central to this ruling, could be key for future cases.  Finally, Justice Thomas joined by Justice Gorsuch argued that this case should have been decided in Phillips’s favor based on free speech grounds, which is a broad argument that, if adopted, could justify a range of discriminatory actions against LGBT individuals.

Ultimately Masterpiece Cakeshop didn’t answer any big questions due to a fact pattern that didn’t lend itself to broadly applicable law.  However, the several concurring opinions provide insight into how the Justices may align, with Alito, Roberts, Gorsuch, and Thomas likely to favor freedom of expression, particularly religious expression, and Kagan, Ginsberg, Sotomayor, and Breyer likely to protect LGBT anti-discrimination policy.  This leaves the question, as usual, up to Justice Kennedy should he see a case before retirement.

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