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June 2018

Supreme Court Sides With Baker In LGBT Rights Row

The United States Supreme Court reached a landmark decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a case involving a dispute between a same-sex couple seeking a wedding cake and a baker who refused to do so on religious grounds.

Masterpiece Cakeshop is a bakery in Lakewood, Colorado, a suburb of Denver and is owned by John Phillips, who also is the baker of the shop and a devout Christian. Charlie Craig and Dave Mullins are a same-sex couple who visited Masterpiece Cakeshop in the summer of 2012 and stated their interest in ordering a cake for “our wedding.” Notably, Craig and Mullins did not mention the design of the cake they envisioned. Phillips informed the couple that he does not “create” wedding cakes for same sex marriage due to his religious beliefs, but would make baked goods for same sex couples on other occasions, such as birthday cakes, shower cakes, and cookies and brownies.

After being refused a wedding cake, Craig and Mullins filed a Charge of Discrimination with the Colorado Civil Rights Division (“CCRD”), alleging a violation of the Colorado Anti-Discrimination Act (“CADA”). It was undisputed that Masterpiece Cakeshop is a place of public accommodation subject to CADA’s public accommodations laws, as it is a place of business open to the public. The CCRD investigated the Charge and issued a finding of probable cause that the Petitioner violated the CADA, and the case was referred to an Administrative Law Judge. The ALJ subsequently granted summary judgment against Masterpiece Cakeshop, holding that making the cake for the same-sex couple would not violate Phillips’s First Amendment free exercise of religion nor his freedom of speech. The Colorado Civil Rights Commission (“Commission”) affirmed the ALJ’s decision in full and conducted two public hearings on the case. The Colorado Court of Appeals affirmed the Commission’s decision and held that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.” The Colorado Supreme Court declined to hear the case, and Masterpiece Cakeshop petitioned for certiorari to the U.S. Supreme Court.

The Supreme Court reversed the Colorado Court of Appeals and vacated the Commission’s findings, holding that the Commission’s actions violated Phillips’ free exercise of religion[1]. In its Majority Opinion, however, Justice Kennedy (with Justices Breyer, Alito, Kagan, Gorsuch, and Chief Justice Roberts concurring) reserved judgment as to the application of its decision on other similar cases involving disputes over the intersection of public accommodation laws and the Free Exercise Clause, limiting its holding to the Commission’s treatment of Phillips’s sincerely-held religious beliefs. The Court noted that Phillips’ sincerely-held religious belief in opposition to same-sex marriage was not in dispute.

Stating the rule that regulations of religion, although permissible in certain circumstances, must be neutrally-applied under the First Amendment’s Free Exercise Clause, the Supreme Court ruled that not only did Phillips not receive a neutral consideration, Colorado’s adjudication of the case was impermissibly hostile toward Phillips’ sincerely-held religious beliefs. The Majority cited two primary considerations for its ruling: (1) actions by the Commission and subsequent adjudication of Phillips’ case; and (2) the CCRD’s inconsistency in other cases decided in the same timeframe.

In the Commission’s formal public hearing on May 30, 2014, commissioners endorsed the view that religious beliefs cannot legitimately be carried out in the commercial domain, and in a subsequent hearing on July 25, 2014, a commissioner compared Phillips’ belief to justifications for slavery and the Holocaust and also described this as “one of the most despicable pieces of rhetoric that people can use.” The Court emphasized that the record showed no objection to these comments from other commissioners, state court rulings did not mention or express concern with these comments, and the comments were not disavowed in briefs filed before the Supreme Court. As a result, the Court could not “avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.”

The Supreme Court also noted that on at least three different occasions the CCRD found other bakers had acted lawfully in refusing service to customers who requested cakes with images or religious passages disapproving of same-sex marriage. The Court viewed the CCRD’s approval of those three bakers’ conscience-based objections but failure to consider Phillips’ religious-based objections as unacceptably inconsistent and explained that the government cannot use its own assessment of offensiveness to justify the dissimilar treatment of two similar fact patterns. Thus, based in part on the government’s disparate treatment of the bases for the bakers’ objections and the Commission’s open hostility toward Phillips’ opposition to same-sex marriage (which was not met with opposition by the other commissioners or reviewing Colorado courts), the Supreme Court held Phillips’ free exercise of religion had been violated. The Court did not reach the freedom of speech issue.

Importantly, the Court did not hold that CADA’s public accommodations provision violated the Free Exercise Clause on its face or even that a finding of a CADA violation against Phillips in this situation would have violated Phillips’ free exercise of religion if the adjudication process had not been openly hostile toward Phillips’ sincerely-held religious beliefs. The Supreme Court specifically noted the general rule that business owners may not use their religious beliefs to “deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” In its conclusion, the Court explicitly left open the underlying issue as to when public accommodations laws may be enforced in these situations, stating, “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 respect to sincere religious beliefs, and without subjecting gay person to indignities when they seek goods and services in an open market.” As a result, the precedential value of this case is likely to be limited to situations involving overt government hostility toward religion and other constitutional protections.

Justice Kagan (with Justice Breyer) concurred, emphasizing that the reasoning behind the disparate treatment between the Masterpiece Cakeshop case and the three bakers who refused to bake the anti-same-sex marriage cakes were the bases for the Majority’s analysis on this issue. Justice Gorsuch (with Justice Alito) also concurred but stated that the error was the failure to apply a consistent legal rule with respect to the CCRD’s decisions of the other bakers in comparison to Phillips and Masterpiece Cakeshop.

Justice Thomas concurred in part and concurred in the judgment, emphasizing the free speech issue that the Majority did not address. Justices Ginsburg and Sotamayor dissented.


[1] The Court did not analyze the issue of whether Phillips’s sincerely-held religious beliefs could be attributed to Masterpiece Cakeshop.

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