In a case with roots in Colorado, the United States Supreme Court recently issued one of its most anticipated rulings of the 2018 term. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court ruled in favor of Jack Phillips, a Colorado baker who in 2012 refused to make a cake for a same-sex couple, Charlie Craig and Dave Mullins, to celebrate their recent out-of-state wedding. In a narrowly tailored decision, the Supreme Court found that the Colorado Civil Rights Commission (“Commission”), which previously ruled in favor of Mr. Craig and Mr. Mullins, had been hostile to Mr. Phillips’ “sincere religious beliefs” and didn’t provide him with a fair hearing when the case came before it. This, the Supreme Court said, violated the Free Exercise Clause of the United States Constitution. What the Supreme Court did not decide, however, is whether the Commission violated Mr. Phillips’ constitutional right to free speech, leaving this decision, which has the potential to result in much more far-reaching consequences, for another day.
In 2012, Mr. Craig and Mr. Mullins went to Masterpiece Cakeshop in Lakewood, Colorado to order a cake for their wedding reception. Mr. Phillips, the shop’s owner, told the couple that he would not make a cake for them because of his religious opposition to same-sex marriages. At the time, Colorado did not recognize same-sex marriage, and the Supreme Court’s landmark decision in Obergefell v. Hodges, which held that same-sex couples have the right to marry, had not yet been handed down. The couple filed a charge with the Commission alleging discrimination on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act. The Commission determined that the shop’s actions violated Colorado’s anti-discrimination law, and the Colorado Court of Appeals upheld that ruling.
Justice Anthony Kennedy, who wrote the majority opinion, began by setting out two “difficult questions” that this case raised. “The first is the authority of a state . . . to protect the rights and dignity of gay persons who are, or wish to be, married.” The second is “the right of all persons to exercise fundamental freedoms under the First Amendment.” In the end, the Supreme Court decided this case entirely in terms of “free exercise” of religion—a much narrower ground than Mr. Phillips’ free speech argument, which many people had hoped this case would resolve.
Rather than determining whether a business can invoke its right to “free speech” and lawfully discriminate through a refusal to provide goods or services based upon the business’s religious beliefs, Justice Kennedy focused on the manner in which this case made its way to the Supreme Court. Specifically, Justice Kennedy looked at the parties’ proceedings before the Commission, and noted that the Commission did not afford Mr. Phillips the “neutral and respectful consideration to which [he] was entitled.” Rather, at one hearing, commissioners repeatedly “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.” At a later meeting, one commissioner “even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust,” Justice Kennedy said. When applied to a proceeding of this nature, the Free Exercise Clause requires that the Commission give full and fair consideration to a party’s religious objection in all circumstances in which the case is presented, considered, and decided. Because Mr. Phillips did not receive such a proceeding, the Supreme Court concluded that the Commission’s order—which, among other things, required Mr. Phillips to sell wedding cakes to same-sex couples—“must be set aside.”
While seven of the nine Justices joined the majority opinion, this case also included four additional opinions—one dissenting opinion, two concurring opinions, and one opinion that concurred in part. In her dissenting opinion, Justice Ruth Bader Ginsberg, joined by Justice Sonya Sotomayor, stated that she agreed with much of the majority opinion, but “strongly disagreed” that the same-sex couple should lose this case. Justice Ginsberg did not agree that the statements made by the Commission should lead to the Supreme Court overturning the Commission’s decision.
In what may amount to a signal of a Supreme Court decision yet to come, Justice Clarence Thomas wrote a separate opinion, joined by Justice Neil Gorsuch, in which he addressed the “free speech” issue that the majority opinion chose to dodge. Justice Thomas stated that the creation of a wedding cake is the type of “expressive” conduct protected by the First Amendment, and that forcing Mr. Phillips to make wedding cakes for same-sex couples would violate his constitutional rights.
In the end, Justice Ginsberg’s opinion, Justice Thomas’s opinion, and the other additional non-majority opinions do not have any weight behind them.
In choosing to focus on the Commission’s actions, the Supreme Court’s majority decision offers little guidance to lower courts or business owners throughout the country. As Justice Kennedy wrote, “the outcome of cases like this in other circumstances must await further elaboration in the courts.” Given the interest in this topic in the business, religious, and legal communities, it is likely that the Supreme Court will revisit this issue in the near future.
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