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Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and the Long Game

            For a while on the morning of June 4th, my Facebook newsfeed suggested the sky was falling because the Supreme Court ruled in favor of a baker who refused to make a custom wedding cake for a same-sex couple.  The sky did have the potential to fall because a broad ruling that personal religious beliefs trumped neutral antidiscrimination laws had the potential to open Pandora’s Box.  But that is not what SCOTUS did.

            By now, we know that the Court ruled narrowly in 7-2 decision (only Justice Thomas would have ruled more broadly) holding that bias on the part of the civil rights commission deprived the baker of neutral consideration of his arguments.  The Court quite clearly declined to answer the “difficult” question of delineating the contours of the First Amendment in this context and then balancing those rights with anti-discrimination laws.  Even so, the decision contains much to cheer those who advocate for gay rights and for anti-discrimination laws generally.

            The basis for the Court’s decision – the hostility of the commissioners – is the barest of fig leafs.  One commissioner stated:  “[I]f a businessman wants to do business in this state and he’s got an issue with the – the law’s impacting his personal belief system, needs to look at being able to compromise.”  Masterpiece Cakeshop, Ltd., slip op. at 13.  That is essentially the holding of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 878-79 (1990) (“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”); see id. at 879 (excusing compliance with neutral laws because of religious beliefs “would be to make the professed doctrines of religious beliefs superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”) (quoting Reynolds v. United States, 98 U.S. 145, 166-67 (1878)).

            While SCOTUS acknowledged that commissioner’s remark might just mean that business people can’t discrimination on the basis of sexual orientation, the Court also indicated that the remark could be showing a lack of respect for the baker’s religion.  The Court concluded that the remark was the latter based on a remark by a different commissioner at a subsequent meeting. 

            The second commissioner stated:

I would also like to reiterate what we said in the hearing or at 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 situation 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.

Masterpiece Cakeshop, Ltd., slip op. at 13.

            Not to be impertinent, but the statement is factually accurate that religion has been used to justify discrimination.  For example, the trial judge in Loving v. Virginia, 388 U.S. 1, 3 (1967), stated:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents.  And, but for the interference with his arrangement, there would be no cause for such marriage.  The fact that he separated the races shows that he did not intend for the races to mix.

And really, it is reprehensible to misuse religion in that way.  While the commissioner may indeed have a dim view of religion generally, it is just as likely that the commissioner may be a religious person who resents the abuse of religion in this matter.  As I said, the Court’s reasoning amounts to a fig leaf.

            What is more interesting than the result is the discussion leading up to it concerning the balancing act between gay rights and the First Amendment.  Justice Kennedy begins the legal discussion with a shot across the bow:

            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 law 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 objects to gay marriage are protected views and in some instances protected forms of expression.  As this Court observed in Obergefell v. Hodges, 576 U.S. ___ (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.

Masterpiece Cakeshop, Ltd., slip op. at 9 (emphasis added).

            Justice Kennedy next assumes that clergy could not be compelled to perform weddings for same-sex couples under the Free Exercise Clause, but notes that “if the 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,” leading to the stigma that civil rights laws seek to avoid.  Id. at 10.  Kennedy then states:

            It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. . . .

Id

            SCOTUS has never held that laws based on sexual orientation are subject to heightened review like race or religion.  Yet, the opinion essentially requires the same treatment for gay people as for any other protected class.  More remarkable, Chief Justice Roberts and Justices Alito and Gorsuch joined the opinion.  (Justices Ginsberg and Sotomayor dissented because they thought the couple should prevail, so they surely agree with Kennedy.)  Roberts and Alito dissented strenuously in Obergefell.  Gorsuch and Alito dissented in the summary reversal of Pavan v. Smith, 582 U.S. ___ (2017), which concerned listing same-sex parents on birth certificates, because they thought biology might be a legitimate basis for the statutory scheme the Court found invalid.  Whether Roberts, Alito, and Gorsuch may not have altered their views on marriage equality, they will be hard pressed to backpedal from Masterpiece Cakeshop when the issue comes before the Court again.

            And it is likely to return.  However, just as he did in United States v. Windsor, 570 U.S. 744 (2013), Kennedy has included language that will guide lower courts to conclude an individual’s beliefs do not trump compliance with neutrally applicable anti-discrimination laws.  Kennedy has also made it clear that those adjudicating such issues need to pay proper respect to the religious beliefs asserted.

            The sky has not fallen.

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