Employment Law Daily Colorado commission lacked neutrality in considering religious objection to cake creation for same-sex wedding
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Monday, June 4, 2018

Colorado commission lacked neutrality in considering religious objection to cake creation for same-sex wedding

By Lorene D. Park, J.D.

The Colorado civil rights commission violated the right of a cake shop owner/designer to the free exercise of religion by failing to consider, with the constitutionally required neutrality, his religious objections to creating a wedding cake for a same-sex wedding, ruled the Supreme Court 7-2, reversing the Colorado Court of Appeals decision to the contrary. The lack of neutrality was evident to the Court from commissioners’ comments disparaging the shop owner’s faith and likening it to the defense of slavery, and from the disparate treatment his case received compared to cases of other bakers objecting to making cakes with anti-gay messages. Justice Kagan filed a concurring opinion joined by Justice Breyer, and Justice Gorsuch filed a concurring opinion in which Justice Alito joined. Justice Thomas concurred in part. Justice Ginsberg filed a dissenting opinion, joined by Justice Sotomayor. Analyses of each opinion, and reactions by the legal community and LGBTQ advocates, are included below (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, June 4, 2018, Kennedy, A.).

Refused to make cake for same-sex wedding. In a non-employment case, two customers visited Masterpiece, a Colorado bakery, and requested the owner and cake designer to create a cake to celebrate their same-sex wedding. He refused, though the parties disagree as to the extent of his refusal to provide the service. A devout Christian, the owner believed that “God’s intention for marriage from the beginning of history is that it is and should be the union of one man and one woman.” He claimed that he explained to the customers that he does not create wedding cakes for same-sex weddings because of his religious beliefs, but he would make and sell them any other baked goods.

Cease and desist order. The customers complained that his actions violated the Colorado Anti-Discrimination Act (CADA) by discriminating against them in a place of public accommodation based on their sexual orientation. An administrative law judge found that the owner had been a Christian for about 35 years and believed that decorating cakes was a form of art through which he could honor God and that he would displease God by creating cakes for same-sex marriages. However, the ALJ rejected his assertions that preparing a wedding cake was a form of protected speech, that creating the cake would force him to adhere to “an ideological point of view,” and that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion. The ALJ found in favor of the customers, and the Colorado Civil Rights Commission affirmed, issuing a cease and desist order requiring Masterpiece to take remedial measures, train staff, and change its policy to ensure compliance with the CADA.

State court finds no violation of cake-maker’s constitutional rights. The owner appealed to the Colorado Court of Appeals, arguing the Commission’s application of CADA violated his rights of free speech and free exercise of religion under the U.S. and Colorado constitutions by requiring that he create wedding cakes for same-sex weddings, which he argued conveyed a celebratory message of marriage and conflicted with his religious beliefs against same-sex marriage. That court found no violation of the Free Speech or Free Exercise Clauses, concluding that CADA is a neutral law of general applicability that merely required that Masterpiece not discriminate.

Petition to High Court. The owner petitioned the Supreme Court for review, arguing that the appellate court’s analysis went against Supreme Court precedent, conflicted with Ninth and Eleventh Circuit decisions on free speech protection of art, deepened a conflict among the Second, Third, Sixth, and Eleventh Circuits as to the proper test for identifying expressive conduct, and conflicted with free exercise rulings from the Third, Sixth, and Tenth Circuits. The question presented was: “Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.”

Supreme Court reverses. Reversing the state court of appeals, the Supreme Court pointed out that our society has recognized that gay persons and gay couples cannot be treated as inferior, and “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.”

Here, the Commission’s actions violated the cake shop owner’s constitutional rights. The majority explained that while Colorado law can protect gay persons in acquiring products and services on the same terms and conditions offered to other members of the public, the law must be applied in a manner that is neutral toward religion.

Commission was not neutral. The Commission’s treatment of the cake designer’s case showed elements of impermissible hostility toward the sincere religious beliefs motivating his objection to creating a cake celebrating a same-sex marriage. According to the record, some commissioners, in the formal public hearing, disparaged his faith as “despicable” and characterized it as merely rhetorical, comparing his invocation of his religious beliefs to defenses of slavery and the Holocaust. These comments cast doubt on the fairness and impartiality of the Commission’s adjudication of the shop owner/designer’s case.

The lack of neutrality was also evident to the High Court in the disparate treatment his case received as compared to cases of other bakers objecting to anti-gay messages. While the instant enforcement proceedings were pending, the state civil rights division found in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. The cake maker in this case was also entitled to a neutral and respectful consideration of his claims in all the circumstances of the case, the Court explained.

First Amendment violation. Based on the foregoing, the Supreme Court concluded that the Commission’s treatment of the cake designer’s case violated the state’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious point of view. Specifically, the cake shop owner/designer’s religious objection was not accorded the neutrality required by the Free Exercise Clause. The High Court noted that the state’s interest could have been weighed against his sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed, but the hostility by commissioners was inconsistent with that requirement, and the Commission’s disparate consideration of his case, compared to the cases of the other bakers, indicated the same.

Ruling limited based on facts. In so ruling, the majority noted its decision was based on the specific circumstances here: “Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.” The Court also explained that its precedent made clear that “the baker, in his capacity as owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here.” Because the Commission did not consider his case with religious neutrality, it violated the Free Exercise Clause and its order must be set aside.

Kagan and Breyer concurring opinion. Justice Kagan, with whom Justice Breyer joined in concurring, wrote separately to elaborate on the differences in the Colorado Commission’s treatment of the Masterpiece owner’s objection to making a same-sex wedding cake and its treatment of other bakers who objected to making “cakes with images that conveyed disapproval of same-sex marriage, along with religious text.”  Justice Kagan took the view that the different outcomes in the Commission’s decisions could have been justified on a neutral basis in that the Masterpiece owner refused to make a cake that he would have made for an opposite-sex couple, but the other bakers did not single out a customer based on sexual orientation, instead refusing to make a cake that they would not have made for anyone. But in this case, the Commission was not neutral in its legal reasoning, so Justice Kagan concurred.

Gorsuch and Alito concurring opinion. Justice Gorsuch, with whom Justice Alito joined in concurring, also focused on the disparate treatment of the Masterpiece Cakeshop owner’s religious-based objection to making a cake as compared to bakers who refused to make a cake that would have offended their “secular commitments.” Highlighting the state Commission’s lack of neutrality, Justice Gorsuch noted that the “judgmental dismissal of a sincerely held religious belief is, of course, antithetical to the First Amendment and cannot begin to satisfy strict scrutiny. The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.”

Thomas and Gorsuch on free speech claim. Justice Thomas, joined by Justice Gorsuch, concurred in part and in the judgment. Thomas wrote separately to address the free speech claim, which the majority opinion did not address due to uncertainty as to whether the shop owner refused to create a custom wedding cake—or any cake at all. The state appeals court addressed this issue and resolved it in the owner’s favor, describing his conduct as a refusal to “design and create a cake to celebrate [a] same-sex wedding.” Though the state court had nonetheless concluded that making a cake was not expressing a message and would merely be complying with the CADA, Justice Thomas disagreed, finding this “reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak.” The shop owner considered himself an artist when designing and creating custom wedding cakes, and contrary to the state appeals court, the baker’s conduct was expressive, concluded Thomas.

Ginsburg dissent. Justice Ginsburg, joined by Justice Sotomayor, dissented. To her, the difference in how the Commission treated the cakemaker here, versus other bakers who refused to make cakes, did not constitute evidence of hostility to religion of the kind the Court previously held to signal a free-exercise violation. Justice Ginsburg highlighted the differences in the cakes requested. In the other case, an individual was denied his request for three separate bakers to make two cakes resembling an open Bible, including a picture of two grooms with a red “X” over the image, and quoting: “Homosexuality is a detestable sin. Leviticus 18:2.” The bakers would have done the open Bibles but declined the “hateful” message.

Here, the two grooms simply requested a wedding cake and mentioned no message that would distinguish their cake from any other cake the baker would have sold. As such, Justice Ginsburg found the cases “hardly comparable.” What mattered, she stressed, was that the Masterpiece Cakeshop owner would not provide goods or services to a same-sex couple that he would provide to a heterosexual couple. Nor did the comments of one or two members of four decision-making entities overcome the shop owner’s refusal to sell the couple a wedding cake. For those reasons, she would have affirmed the Colorado Court of Appeals’ judgment.

Masterpiece Cakeshop customers react: Charlie Craig and Dave Mullins, the customers requesting the wedding cake in this case, issued the following statement: “Today’s decision means our fight against discrimination and unfair treatment will continue. We have always believed that in America, you should not be turned away from a business open to the public because of who you are. We brought this case because no one should have to face the shame, embarrassment, and humiliation of being told ‘we don’t serve your kind here’ that we faced, and we will continue fighting until no one does.”

AGs respond. Attorney General Jeff Sessions said he was “pleased” at the Supreme Court’s decision: “The First Amendment prohibits governments from discriminating against citizens on the basis of religious beliefs. The Supreme Court rightly concluded that the Colorado Civil Rights Commission failed to show tolerance and respect for Mr. Phillips’ religious beliefs.”

New York Attorney General Barbara Underwood, who joined a coalition of 20 AGs filing an amicus brief defending Colorado’s law, issued this statement: “It’s important to note that today’s Supreme Court opinion in Masterpiece Cakeshop is extremely narrow. Let me be clear: discrimination has no place in New York State, and personal beliefs do not give business owners the right to discriminate. We will continue to use the powerful tools of our state and local laws to protect all LGBTQ individuals from discrimination—and ensure that all New Yorkers are treated with the equal protection to which they are entitled, no matter who they love.”

Civil rights advocates react. In a statement, the ACLU highlighted that the Supreme Court “reaffirmed the core principle that businesses open to the public must be open to all,” but that the Commission in this case had not given fair consideration to the baker’s claims. “The court reversed the Masterpiece Cakeshop decision based on concerns unique to the case but reaffirmed its longstanding rule that states can prevent the harms of discrimination in the marketplace, including against LGBT people,” said Louise Melling, deputy legal director of the ACLU.

Along the same lines, Chicago-Kent law professor Anthony Michael Kreis Tweeted, among other comments: “I think the best way to describe #SCOTUS’ Masterpiece decision to lay audiences: It is unlawful to discriminate against LGBT customers. It is unconstitutional for state officials to be a jerk when enforcing those laws.”

The President and CEO of LGBTQ Victory Institute, Mayor Annise Parker, issued a statement with the following concern: “While the Supreme Court made a narrow ruling focused exclusively on a state agency’s treatment of a Colorado baker, opponents of equality will use it to try and open the floodgates. Homophobic forces will purposefully over-interpret the ruling and challenge existing non-discrimination laws by refusing service to LGBTQ people in even more situations—denying them dinner at a restaurant, lodging at a hotel, or renting an apartment.”

Foreshadowing for Trump v. Hawaii? UCLA law professor Eugene Volokh expressed some disappointment that the Supreme Court’s decision left almost all the “big questions” unresolved, including whether bakers have a First Amendment right to refuse to bake cakes for same-sex weddings, even if state law bans sexual orientation discrimination by such businesses. Professor Volokh also posed a question echoed by others, pondering: “Does all this talk about government officials’ statements showing religious bias foreshadow the result in the so-called (rightly or wrongly) ‘Trump Travel Ban’ case, where the challengers are arguing that various statements by candidate Trump or President Trump show that the restrictions on travel from certain countries were motivated by religious hostility?”

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