Colorado cake shop owner refused to bake a wedding cake for a gay couple getting married – at the time, Colorado did not recognize gay marriage – but offered to sell the couple a different kind of baked good, like a birthday cake.
The couple filed a charge with the Colorado Civil Rights Commission pursuant to the Colorado Anti-Discrimination Act/ The CADA prohibits discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.”
Under CADA, the Colorado Civil Rights Division found probable cause for a violation and referred the case to the Civil Rights Commission for review.
An Administrative Law Judge (ALJ) ruled in the couple’s favor, rejecting the baker’s First Amendment claims, chiefly that requiring him to bake a cake for a same-sex wedding would (1) violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed, and (2) violate his free exercise of religion.
Colorado Court of Appeals affirmed, the Supreme Court disagreed and held that the Commission’s action in the case violated the Free Exercise Clause.
My take? This may have been a poor test case, given the state of Colorado law at the time and other findings of the Colorado Civil Rights Commission. (E.g., same-sex marriage was prohibited under Colorado law and state law at the time allowed business owners to refuse to create messages they felt were offensive.) My additional take? While not wildly off base (imo, the Opinion makes some fair points), the Majority was reaching to find this outcome. Unsurprisingly, I’m more or less with Ginsburg on this one.
Worth noting: Justice Kennedy wrote the opinion, Justices Roberts, Breyer, Alito, Kagan, and Gorsuch joined. Kagan filed a concurring opinion in which Breyer joined. Gorsuch filed a concurring opinion in which Alito joined. Thomas filed an opinion concurring in part and concurring in judgment, in which Gorsuch joined. Justices Ginsburg and Sotomayor dissented (Ginsburg wrote, Sotomayor joined).
REALLY IMPORTANT THING TO KEEP IN MIND: The Court held that the actions of the Colorado Civil Rights Commission violated the Free Exercise Clause. That is what the Court held. The Court did not hold that the baker was right or wrong. The Court did not address the baker except as the baker was connected to the Commission. The Court did not hold that Colorado’s Anti-Discrimination Act was unconstitutional. Instead, it focused on the comportment of the Commission when dealing with this matter. [According to the Court] the Commission behaved unconstitutionally. This is a pretty narrow opinion.
The TL;DR here is that the Colorado government (in the form of the Commission) inserted its own views on what constitutes offensive and what does not, and those views (the government’s subjective view that religion as a basis for refusing to bake a cake is not good enough where “feeling offended” by a message is good enough) violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.
As the ACLU said: “The Supreme Court ruled 7-2 this morning to reverse the decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. However, the Court did NOT rule that the Constitution gives a right to discriminate. It only ruled Colorado’s complaint process was flawed.”
At least two primary principles to reconcile: (1) “The authority of a State and its government entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek good or services.” (2) “The right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.” [FYI, the reason you have federal constitutional rights recognized by your state’s government is because they were applied to the states through the Fourteenth Amendment.]
The Court recognizes that this case is an application of constitutional freedoms in new contexts. E.g., cake decorating as freedom of speech.
The Court also immediately points to the importance of the DEGREE of refusal of service on the part of the baker: “If a baker refused to design a special cake with words or images celebrating the marriage – for instance, a cake showing words with religious meaning – that might be different from a refusal to sell any cake at all. In defining whether a baker’s creation can be protected, these details might make a difference.”
The Court felt that the baker’s (Jack Phillips) reason and motive for refusing to bake the wedding cake were “based on his sincere religious beliefs and convictions.”(Rather than, say, being an asshole.) (Important finding for ultimate outcome of the case.)
Other important thing worth noting, which I think has not made it into mainstream news coverage, Phillips told the couple (Charlie Craig and Dave Mullins), “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” Phillips didn’t refuse to serve Craig and Mullins altogether. He said he wouldn’t make them a wedding cake; other baked goods were fair game. At the time, same-sex marriage was prohibited under Colorado law, and Phillips also cited to this as a reason for refusing to bake a wedding cake for the couple.
As mentioned above, Colorado has an Anti-Discrimination Act which states in relevant part: “It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.” Colo. Rev. Stat. §24–34–601(2)(a) (2017).
“Public accommodation” is defined broadly to include any “place of business engaged in any sales to the public and any place offering services . . . to the public,” but excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes.” §24–34–601(1).
The Act also created the Commission that heard this matter following the ALJ and before the Colorado Court of Appeals.
[There’s a lot of relevant and worth-reading background in the Opinion, but I’m not going to put it all in here because it would be way too much and this is already too much, but you should go and read the Opinion. It’s only 56 pages long – the whole thing, including concurrences and dissents – which is SHORT by SCOTUS opinion standards.]
THE MEATIER PART:
The Court sort of sets up a balancing test in the first section of its analysis, recognizing that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity or worth,” but that “[a]t the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” However, “while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
[They never really come back to this. Honestly, this Opinion is a bit loose.]
TL;DR: Gay people’s rights must be protected. Religious people’s rights must also be protected. Religious people’s rights are NOT protected if they are using those “rights” to deny people protected by law equal access to goods and services.
But anyway, that’s the rule of thumb here. [That never really gets analyzed fully.]
There’s also a balance when it comes to weddings and speech, specifically. The Court recognizes that a member of the clergy who objects to gay marriage on religious and moral grounds can’t be compelled to perform the ceremony without denying his or her right to the free exercise of religion. The Constitution would recognize such a refusal as a protected exercise of religion and gay persons could likely accept this without a serious diminishment to their own dignity and worth. [At this point I’m thinking, “I’m with you Kennedy, where do you take that hard left turn??” and also “But there’s a really big difference between acting in your capacity as a religious figure and acting in your capacity as a purveyor of public goods and services.”]
This goes on. Court recognizes that this is a confined exception to some degree because otherwise there would be a long list of persons who provide goods and services for marriages and weddings who might refuse to do so for gay persons, thereby 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.” And that would be wrong.
The Court also recognizes that the Colorado law’s protection of gay persons is unexceptional (i.e., lots of states protect gay people and that is a-ok and constitutional!). But then we start getting to the rub.
The Court says “there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.” THEN it remarks on the Petitioner’s (Phillips’) concession that if Phillips had refused to sell ANY goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under existing precedents that the denial of goods and services went beyond any protected rights of a baker. [What you’ll see between the Majority and the Dissent is framing narrowly vs. broadly. The Majority sees “baked goods” with “wedding cakes” as a small subset. The Dissent sees this as being about “wedding cakes” on the whole and an outright refusal to sell ANY wedding cake to a specific group of people.]
Ah, but according to the Court this is a just a subset issue. Phillips did not make a blanket refusal to sell anything at all to Craig and Mullions. And this, to the Court, makes all the difference in the world.
Phillips had clever lawyers who saw the merit in making an argument about free speech as it related to artistic creation in the form of a cake. The Court LOVED this and really grabbed on to it, saying “the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way consistent with his religious beliefs.”
The Court also noted that the legal context in Colorado at the time was somewhat unsettled: Colorado did not recognize the validity of gay marriages performed in its own state, and found that this gave some force to the argument that Phillips was not unreasonable in thinking it was lawful to decline to take an action he saw as an expression of support for something that was contrary to his own religious views, especially as his refusal was limited to creating and expressing a message in support of gay marriage (a wedding cake).
Additionally, as I previously mentioned above, Colorado law protected storekeepers’ decision to decline to create specific messages that the storekeeper considered offensive. The Court noted this in the Opinion as well. AND AGAIN, emphasized the need for balance: “[A]ny decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons.” [Again, I’m thinking, “But this guy said ‘no wedding cakes for gay people’ which is kind of the same thing.”]
As the Court saw it, the Commission screwed up when it came to Phillips because it failed to be both neutral and respectful in the consideration of his claims. Instead, the Commission – according to the Court – was hostile. [And I think the Court is partially correct (at least as far as it paints the record – it cites to the record from the proceedings and the Commission was pretty…not neutral. For example: Commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere; supposedly made implications that religious beliefs and persons are less than fully welcome in the Colorado business community, etc.]
I think Kennedy was stretching the hostility portion a bit far, though, tbh. I think the Commission probably needed to reign it in, but I’m not sure they were as patently offensive as Kennedy sets out to paint them. For example, a commissioner pointed out that religion has often been used as a rhetorical device to authorize and rationalize discriminatory acts and Kennedy went off in a highly personalized way and characterized this statement as being a direct attack at Phillips, which is not at all how I interpreted it. Now, the Court didn’t quote all of the comments (which immediately made me suspicious), so who knows whether they were more or less offensive than characterized by the Court, but I’d imagine if they were really so heinous, the Court would have wanted to include direct quotes. Just my $0.02. (When I was clerking I ADORED direct quotes that made my point – much better than a summary or interpretation.)
The Court also points out discrepancy between the Commission’s commentary about Phillips versus how it handled bakers who refused service on the basis of statements they deemed derogatory. In the latter cases, the Commission was [apparently] deferential to the baker in terms of accepting the baker’s perspective as truly held (as opposed to a stand-in for being a bigot, presumably).
Anyway, Kennedy spends A LOT of time on this hostility angle – you can get in there and read it yourself if you’re interested. The TL;DR is that the Court feels that the Commission treated conscience-based objections to baking commissions VERY differently depending on what they were (“that’s offensive and derogatory towards gay people” – okay vs. “it is against my religion to bake something that expresses support for gay marriage” – not okay). Put another way, in the Phillips case, the Commission said that the message of/on the wedding cake would be attributed to the customers, not to the baker, but apparently it made no such argument regarding the other complaints about bakeries. [I should say I was kind of on board with Kennedy’s assessment of all of this until I read the dissent, which actually discussed the other situations regarding baking commissions – always look for the other side, guys, even if you think you’re convinced of something!]
Then the Court gets to the constitutional stuff (honestly, it’s a shockingly tiny portion of the overall Opinion. I feel like Kennedy was on his way out to the beach or something). In order to adhere to the Free Exercise Clause of the Constitution, a state government “cannot impose regulations that are hostile to religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.” The Court thinks the Commission did just that when it implicitly (perhaps explicitly) outwardly doubted the legitimacy of Phillips’ religious beliefs.
The Court held:
“The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.
“The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
But you always gotta read the dissent – because that’s how you get the rest of a story or signs of an untrustworthy narrator. I’m not going to do an entire write-up on Ginsburg, but I’m dropping some extra info and you can read the whole thing when you have time.
Background on the customer who went to the other bakeries with which the Commission sided:
William Jack visited three Colorado bakeries. His visits followed a similar pattern. He requested two cakes “made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He]requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] . . . ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’[Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’ ”
Ginsburg points out that Craig and Mullins requested no imagery or verbiage on their cake. She also points out that the bakeries would have refused such a request as Jack’s from anyone who made it – he wasn’t targeted because he was Christian. To support this, Ginsburg cites to evidence that the bakeries who refused Jack regularly made other cakes with Christina imagery and messages. Those same bakeries had also refused to produce cakes that demeaned individuals protected by Colorado’s anti-discrimination law. In shorthand, those bakeries refused to produce a certain message, regardless of who requested it. Phillips refused to produce a wedding cake specifically BECAUSE it was requested by two gay men. He had no problem producing wedding cakes otherwise and selling them to others.
Ginsburg writes, “The fact that Phillips might sell other cakes and cookies to gay and lesbian customers was irrelevant to the issue Craig and Mullins’ case presented. What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple. In contrast, the other bakeries’ sale of other goods to Christian customers was relevant: It shows that there were no goods the bakeries would sell to a non-Christian customer that they would refuse to sell to a Christian customer.”
Ginsburg also questions the Majority’s statement of a refusal “to design a special cake with words or images . . . might be different from a refusal to sell any cake at all” when, in fact, the situation at hand WAS a refusal to sell any cake at all. (One has to wonder if Craig and Mullins had changed their order to, say, a three-tiered “birthday” cake with no words or images on it, whether the baker would have complied. I suspect not.)