On Monday, a majority of the Supreme Court sided with a bakery in an appeal that backed the owner’s refusal to create a wedding cake for a same-sex couple because of his religious opposition to their marriage.
My first reaction upon hearing the news was to conclude that a majority of the Court had ruled that the Constitution protects discrimination.
The appeal required the justices to reconcile the obligation of the law to protect the rights of gay people who wish to marry and the right of everyone to exercise freedom of religion guaranteed by the First Amendment.
I wondered how Justice Kennedy, who wrote the majority opinion and who authored a 2015 ruling that upheld the right of same-sex couples to marry, could have backed the bakery’s owner.
But that’s not what happened exactly.
The majority sided with the owner after finding that a state commission charged with reviewing the owner’s contention that creating a cake for a same-sex wedding would contravene his belief that “God [intends that marriage] should be the union of one man and one woman” had abandoned its neutrality.
A couple walks into a bakery
The dispute began in 2012, when Charlie Craig and Dave Mullins entered Masterpiece Cakeshop, a bakery in Lakewood, which forms part of metropolitan Denver. The couple planned to marry in Massachusetts (at the time, Colorado did not recognize same-sex marriages) and then hold a reception in the Mile High City.
Craig and Mullins told Jack Phillips, the shop’s owner, of their interest in ordering a cake for “our wedding.” Phillips, a devout Christian, replied that he does not create cakes for same-sex weddings, but that he would sell them birthday cakes, cookies or brownies. “I just don’t make cakes for same-sex weddings,” he said.
Phillips reiterated his stance the next day on the phone to Craig’s mother, who had called to ask why he declined to serve her son. He explained that to create a cake for an event that celebrates “something that directly goes against the teachings of the Bible” would constitute his endorsing and participating in the ceremony. Philips also noted that Colorado law (at that time) did not recognize same-sex marriage.
The law in Colorado
Colorado law bars businesses from refusing to serve anyone on the basis of their sexual orientation or marital status. Someone who feels their rights have been violated can file a complaint with the Colorado Civil Rights Division, a state agency that will investigate the claim.
If the agency concludes that the claim has merit, it forwards the dispute to the Colorado Civil Rights Commission, a seven-member body that can refer the dispute to an administrative law judge for a hearing. Decisions by the administrative law judges can be appealed to the full commission, which then holds a public hearing before voting on the case. The law gives the commission the authority to order a business to cease and desist a practice deemed to be discriminatory.
In August 2012, Craig and Mullins filed a complaint against Phillips with the civil rights division, which concluded, after investigating the matter, that Phillips had refused to sell cakes to a series of same-sex couples and referred the case to the commission.
The commission referred the case to an administrative law judge, who ruled in favor of Craig and Mullins after finding that the state’s anti-discrimination law is a “valid and neutral law of general applicability” that did not violate Phillips’ right to the free exercise of his religion.
Phillips appealed the ruling to the commission, which affirmed the judge’s ruling, and then to the state’s court of appeals, which upheld it as well. He appealed to the U.S. Supreme Court after the state supreme court declined to hear the case.
A narrow ground
Justice Kennedy noted that clash between state law, which protects gay people like it protects others in acquiring whatever products or services they choose, and the claim by Phillips that creating a cake for the couple would have required him to use his skills as an artist to make an expressive statement that would contravene his sincerely held religious beliefs.
“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” wrote Kennedy. “For that reason, the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”
“At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression,” he added.
Still, Phillips was entitled to “neutral and respectful consideration of his claims” that the majority found was lacking. Instead, the civil rights commission’s handling of the case showed “some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection,” Justice Kennedy wrote.
At a meeting of the commission’s seven members to consider the case, one commissioner suggested that Phillips remained free to believe what he believes “but cannot act on his beliefs ‘if he decides to do business in the state,’” noted Justice Kennedy.
At a meeting of the commission about six week later, another commissioner went further, saying that using religion to “justify discrimination… is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
The comment, which no other member of the commission objected to, “is inappropriate for a commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation,” Justice Kennedy wrote.
The majority also noted that on at least three occasions the commission upheld the right of bakers to refuse to create cakes with messages “that conveyed disapproval of same-sex marriage.”
Though in the case of Phillips the commission ruled that any message on the cake would be attributed to Craig and Mullins and not to Phillips, “the commission did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism,” Kennedy noted.
As such, the commission’s treatment of Phillips’ case “violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint,” said Justice Kennedy. Because Phillips “was entitled to a neutral decision maker,” the commission’s order must be set aside.
Still, Kennedy suggested that the Court may side with same-sex couples in future disputes that raise similar facts.
“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,” he cautioned.
In a dissent, Justice Ginsburg, joined by Justice Sotomayor, said she would have affirmed the state’s ruling in favor of Craig and Mullins. The record does “not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decision-making entities considering this case justify reversing the judgment below,” she wrote.
Justice Thomas, joined by Justice Gorsuch, wrote separately to focus on the baker’s free-speech rights. “Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are ‘weddings’ and suggest that they should be celebrated—the precise message he believes his faith forbids,” Thomas said.
Reaction to the ruling
Writing at Scotusblog, Elizabeth Clark, a professor of law at Brigham Young University, predicted that by denying the claims of partisans on both sides of the case, “the decision may open up a space for a more thoughtful examination of the interaction of LGBTQ rights and religious freedom, both of which reflect deeply felt worldviews and both of which offer strong dignity, equality and liberty claims.”
Professor Michael Dorf of Cornell Law school focused on what the ruling doesn’t do. “[T]he stated rationale for the ruling in Masterpiece doesn’t wash,” he wrote. “At best, it is a masterpiece of ducking the hard questions.”
In the Times, Linda Greenhouse concluded that “the religious right didn’t get what it wanted from this case, and we have Justice Kennedy to thank for that. He found a way for two gay men to lose a case without setting back the cause of gay equality for which he has earned his place in history.”
Over at Slate, Dalia Lithwick noted the confusion (such as my own) that greeted the ruling, which she says focuses on the tenor with which tribunals resolve disputes. “No wonder the headline writers were confused,” she writes. “To the extent Masterpiece Cakeshop resolved the issue it was granted to take on—whether or not the dignitary interests of religious dissenters can override civil rights and public-accommodations laws—the rule that emerged is simply that we must speak civilly toward one another. The merits? They can wait for another day.”
The American Civil Liberties Union welcomed parts of the ruling that the group said reaffirm legal protections for gay people.
At Masterpiece Cake shop, phones rang off the hook following the ruling. Phillips referred reporters looking for comment to his lawyers.
Outside the shop, Marie Sautter Damm and her husband Richard Damm ate brownies. “It’s not about being anti-gay,” she told the Denver Post. “I have friends and church members that are gay. People should have their religious rights. Too long in my life I’ve been keeping my mouth shut – but no more. I don’t have to agree with you for you to have your own rights.”
Craig told CNN that the ruling affirms that businesses can choose what they sell to people, “they just can’t choose who to sell it to.”
On a recent visit to a Spectrum cable TV store in Manhattan, I experienced an emotion that one does not tend to connect with cable TV and internet service: delight.