I was hoping to work on research for my book today, but the Supreme Court had other ideas.
This morning, the Court released their decision in Masterpiece Cakeshop. Ltd. v. Colorado Civil Rights Commission. The 7-2 decision, authored by Justice Anthony Kennedy (who also authored both Windsor and Obergefell) ruled against the Colorado Civil Rights Commission. Experts are calling this a limited decision, not because of the vote but because of certain factors unique to the case.
The plaintiff, Jack Phillips, refused to create a wedding cake for a same-sex couple, citing his religious beliefs and that making a cake was an expressive act in line with his free speech rights. The couple filed a complaint with the Civil Rights Commission. The dispute occurred in 2012, when same-sex marriage was not yet recognized by Colorado law and three years before the Obergefell decision would open the door nationally by striking down anti-gay marriage legislation.
The timing of the dispute is one of the limitations of the decision. The Justices were relying on law as it existed at the time. It’s an open question how such a case would be treated post-Obergefell.
Justice Kennedy focused on a particular aspect of the Masterpiece case: the perception of religious bias on the part of one or two members of the Civil Rights Commission. During one hearing, Phillips was simply told to keep his religious beliefs out of the public square. In another, a commissioner made the following statement quoted in Kennedy’s ruling:
“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Tr. 11–12.
This is the other major limitation of the Masterpiece case; the presence of apparent bias against religious expression as a legitimate value to be considered. Kennedy concludes his argument with the same kind of hopeful language he provided in Obergefell.
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.
Today’s decision is hard to use as a guideline because it is essentially a negative argument — it defines how governmental groups must not act. But it provides little guidance on how that might work.
As I’ve written before, the 1990 Smith decision provides that religious expression cannot trump “generally applicable law” as long as the law does not provide an “undue burden” on the citizen or religious group. Curiously, today’s decision draws heavily from another Kennedy decision from 1993: The Church of Lakumi Babalu Aye v. Hialeah.
In all my amateur explorations of religious freedom jurisprudence, this one had escaped me entirely. A syncretistic religious group, Santeria, practiced the sacrifice of chickens as part of their religious practice. The City of Haileah, Florida thought this was a bad idea and passed an ordinance criminalizing animal sacrifice (with some exemptions). But key to the case, and key to its use today, is that city council members denounced the religious group in particular calling it unAmerican, abhorrent, and uBiblical. It seems the public prejudice against this group as expressed by the council and citizen comments, suggested that the decision was prejudicial against a legitimate (although deviant) religious expression.
So Justice Kennedy tells us that in our search for accommodation of religious expression and non-discrimination, we have to be searching for resolution without prejudicing one side or the other.
This will likely prove quite difficult in practice. We have already seen strongly worded state legislation protecting certain traditional religious values that do so with prejudice toward LGBTQ individuals. We certainly see comments on social media about religious bigotry that sound a lot like comments made by the Colorado Civil Rights Commission. Kennedy’s closing paragraph (above) suggests lots more court cases as groups err on either side.
While Justice Ginsberg felt the Commission’s actions should not be limited by comments from one or two members, I tend to side with Justice Kennedy. If others on the Commission had spoken out against those comments, or at least provided a more balanced approach, then one or two outliers wouldn’t be a problem. In the absence of any record to the contrary, it’s reasonable to argue the Commission was less than fair in their review.
This lack prevented the Commission (and thereby SCOTUS) from addressing the freedom of expression part of Phillips’ claims. Does a baker “own” the words put on the cake as a matter of identity?
Justice Gorsuch, concurring with the main ruling, spends quite a bit of time on this by drawing upon an amicus filing by someone who was refused when asking bakers to bake anti-gay cakes. (It’s a surprisingly poorly argued opinion!) Because bakers who baked anti-gay cakes would be held accountable for what the cake said, so should Phillips, Gorsuch argued.
So Justice Kennedy encourages us to 1) resolve disputes with tolerance, 2) not disrespect sincerely held religious beliefs, and 3) not expose LGBTQ citizens to indignities. The first of these points seems paramount. You cannot find the balance between 2 and 3 without 1. As chair of the City of Jackson Human Relations Commission, I have a natural interest in trying to think through how Kennedy’s balance might be achieved.
Kennedy seems to create an expectation that SCOTUS, at least as long as he remains on the Court, would anticipate some level of compromise between service providers and LGBTQ clients. Perhaps bakers will provide cakes that simply say “congratulations on your wedding” and leave off the names and the figurines. Maybe florists will serve all customers but make clear that they can’t be expected to set up the flowers in the wedding venue. In other words, if there is a way to provide the service without in some way participating in the actual ceremony, that accommodation should be found. (Ministers and photographers/videographers would therefore be in a different category).
Such accommodation would work very differently in terms of pharmacists or doctors denying service or a county clerk signing a marriage certificate. Their actions do not constitute a direct participation in activities they see as opposed to their strongly held religious beliefs.
The Court should be crystal clear that such accommodations do not extend to issues of hiring, termination, pay, or rental status. Even though many states have yet to pass these important civil rights safeguards, these exclusionary actions are in a very different category than bakers and florists.
On balance, then, the Masterpiece decision is important as an illustration of what not to do. It is only another step in what is going to be a long journey. It’s important for all sides in the debate to avoid the temptation to score wins and losses. We have a lot of work still in front of us.