On June 4th, 2018, the US Supreme Court issued a decision in the case of Masterpiece Cakeshop, et al. v. Colorado Civil Rights Commission, et al. The case involves the 2012 decision by the Colorado Civil Rights Commission (“CCRC”) finding that the bakery had violated Colorado law in denying a request by a gay male couple to prepare a wedding cake for their reception. The couple was getting married in Massachusetts because, in 2012, same-sex marriage was not legal, and they wanted to have a nice reception in the Colorado town where they lived. Indeed, Justice Kennedy, the author of the majority decision, noted that the CCRC investigator found that “on multiple occasions,” Phillips “turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception” because his religious beliefs prohibited it and because the potential customers “were doing something illegal” at that time.
The first thing that must be pointed out is that, while the decision was seven-to-two against the CCRC, Justice Kennedy did not say that businesses have the right to discriminate and not provide services to LGBTQ people. In fact, he said just the opposite:
“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. 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. As this Court observed in Obergefell v. Hodges (2015), “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law. See Newman v. Piggy Park Enterprises (1968); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, (1995) (“Provisions like these are well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments”).
“When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”
Clearly, this was not a case where the couple required the baker to attend the wedding reception in a church or other religious facility. Justice Kennedy also discussed what would constitute a violation of free speech and found that there was no violation in this particular case.
“If a baker refused to design a special cake with words or images celebrating the marriage – for instance, a cake showing words with religious meaning – that might be different from a refusal to sell any cake at all. In defining whether a baker’s creation can be protected, these details might make a difference. The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless.”
Justice Kennedy clearly and concisely found that CCRC, in the public hearings held to discuss the case, did not act as a neutral and unbiased arbiter of the facts. Rather, several of the commissioners made clear that they viewed the baker’s religious beliefs with animosity that violated the rule of law concerning discrimination cases.
“The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection…. 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 decides to do business in the state.’
“[A]nother commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated:
‘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.’
“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 as merely rhetorical – something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law – a law that protects discrimination on the basis of religion as well as sexual orientation.”
Justice Kennedy overturned the decision of the CCRC because it had violated the right of the bakery to a fair and neutral enforcement of the law based on their own discriminatory attitude towards the baker’s religion – “The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.” There is nothing in the majority decision that can lead someone to believe that the US Supreme Court has taken the position that LGBTQ people can, and should, be disallowed services or business based solely on their sexual orientation. This decision was a slap in the face of the CCRC because of the commissioners’ own bigotry.
- Linda A. Dominguez is the founder of L A Dominguez Law, which opened its doors in March 2006. The focus of the firm is on immigration law and LGBTQ issues. Linda has been practicing law since November 1989 and spent more than 16 years as a federal prosecutor. She is licensed in Maryland, Pennsylvania, as well as being admitted to the U.S. Supreme Court, U.S. Courts of Appeals for the 3rd, 4th, and 7th Circuits, and the U.S. District Court for the District of Maryland. Linda has one precedent decision issued by the Fourth Circuit Court of Appeals, Cordova v. Holder, 759 F.3d 332 (4th Cir. 2014), on an asylum case from El Salvador.