Few decisions from the United States Supreme Court this term were as anxiously anticipated as that in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Everyone anticipated a close decision where the Court would balance religious liberty against discrimination based on sexual orientation. The decision announced on June 4, 2018 was not close and it did not decide that issue. Instead, it did something much more important.
The case concerns Jack Phillips, a Colorado baker and the owner of Masterpiece Cakeshop, which he opened in 1993. In 2012, David Mullins and Charlie Craig, two gay men intending to get married, came into his bakery and asked him to design a cake for their wedding. Mr. Phillips declined, based on his Christian faith and his religious conviction that marriage was ordained by God as between a man and a woman.
Messrs. Mullins and Craig filed a complaint with the Colorado Civil Rights Commission, which ruled in their favor, based on the State’s law against discrimination based on sexual orientation. The Colorado Court of Appeals affirmed, ruling that Masterpiece Cakeshop is a place of public accommodation, and so could not refuse to design the cake for the wedding because of the sexual orientation of the customer. The Colorado Court also found that doing so did not require Mr. Phillips to “support or endorse any particular religious view.” The Supreme Court agreed to hear the case.
The decision was 7 – 2 to reverse the Colorado judgment, with the majority opinion authored by Justice Anthony Kennedy. Justice Kennedy had authored the opinion in Obergefell v. Hogdes, in which the Supreme Court announced the right of same-sex couples to marry, and he has long championed that cause. But he is also very protective of religious freedom.
Justice Kennedy began by noting that “the case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State … to protect the rights and dignity of gay persons … The second is the right of all persons to exercise fundamental freedoms under the First Amendment.”
Mr. Phillips and Masterpiece Cakeshop had presented their constitutional case based on both freedom of speech and freedom of religion. The Court gave very little attention to the free speech claim, and focused almost entirely on freedom of religion.
Justice Kennedy described Mr. Phillips as “a devout Christian” who believes that God ordained marriage as between a man and a woman; and acknowledged that for him to “create a wedding cake for a same-sex wedding would be the equivalent to participating in a celebration that is contrary to his own most deeply held beliefs.” He noted that Mr. Phillips objection “was particularly understandable” since the State of Colorado did not permit same-sex marriages at the time.
Justice Kennedy then described the anti-discrimination laws of Colorado, noting that “for most of its history, Colorado has prohibited discrimination in places of public accommodation.” He described the law as arising from “the recognition that gay persons and gay couples cannot be treated … as inferior in dignity and worth … and the Constitution can, and in some cases must, protect them in the exercise of their civil rights.”
Having presented the contending positions, Justice Kennedy did not seek to balance them, or to announce a test for future cases to follow. He noted that the potential factual scenarios of future cases “seem all but endless.”
Instead, Justice Kennedy reviewed the process by which the Colorado Civil Rights Commission and the Colorado courts had decided this case. He was very critical, because the freedom of religion claim was treated in a dismissive way, even to the point of showing hostility to the exercise of religion in the marketplace. Justice Kennedy wrote “the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality”; and that the treatment of this case shows “a clear and impressible hostility toward the sincere religious beliefs” that motivated Mr. Phillips objection.
To quote the Supreme Court’s majority decision:
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 desires to do business in the state.
The Court was particularly angered by the comments of one commissioner that “religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust … to me, it is one of the most despicable pieces of rhetoric that people can use, to use their religion to hurt others.” Justice Kennedy’s opinion responded:
To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it a merely rhetorical – something insubstantial and even insincere. … The Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillip’s case.
The Supreme Court then set aside the decision from Colorado, without trying to resolve or balance the underlying issues, saying:
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 any open market.
This decision is another from the Roberts Court which has aggressively expanded the scope of religious freedom. The Supreme Court has now decided a series of cases where it has recognized that the “free exercise” of religion extends beyond the walls of a church and beyond the conscience of the faithful. Rather, free exercise extends “into the public sphere” and into the “business community.”
The majority opinion was clearly written to garner the largest possible majority, being joined by both the Court’s “conservative” justices (Roberts, Thomas, Alito, and Gorsuch) and “liberal” justices (Breyer and Kagan). The only dissenters were Justices Ginsburg and Sotomayor, who have joined in dissent on other cases concerning religious liberty. Certainly, if the Court had tried to decide the underlying dispute, that majority would have splintered into smaller factions. As it was, Justices Thomas and Gorsuch were ready to go further, and the resolve the case outright for Masterpiece Cakeshop on constitutional grounds.
By focusing on the procedural issues, the Roberts Court has spoken with a strong majority that religious freedom extends to the marketplace and to the public sphere. It extends beyond conscience and into everyday life. There can now be no doubt but that any sincere religious convictions must be given respect by courts and administrative agencies. The exact boundaries and limits will vary with the circumstances, and future cases will flesh that out. But the basic principles are now strongly stated and well established.