Masterpiece Cakeshop is a Colorado bakery owned and operated by Jack Phillips, an expert baker and devout Christian.  In 2012, he told a same-sex couple that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages, that Colorado did not then recognize, but he would sell them other baked goods, e.g., birthday cakes.

The couple then filed a charge with the Colorado Civil Rights Commission (Commission) pursuant to the Colorado Anti-Discrimination Act (CADA), which prohibits, discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services. . . to the public.”  Under CADA’s administrative review system, the Colorado Civil Rights Division found probable cause for a violation and referred the case to the   Commission, which  then referred the case for a formal hearing before a state Administrative Law Judge (ALJ), who ruled in the couple’s favor.  In so doing, the ALJ rejected Phillips’ First Amendment claims that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed and would violate his right to the free exercise of religion.  Both the Commission and the Colorado Court of Appeals affirmed and the United States Supreme Court granted certiorari.

 The Masterpiece Cakeshop case got crushed in a mash-up, all to familiar to local government attorneys. A member of the Commission, who was a  fact finder, compared Phelps beliefs as a defense of slavery and the Holocaust, further stating that:

“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.” Other Commissioners made no objection to these comments.

Furthermore, on three separate occasions the Civil Rights Division considered the refusal of other bakers to create cakes with images that convey disapproval of same-sex marriage, along with religious texts, concluding that the bakers acted lawfully in refusing this service.

Opinion

Hostility

Justice Kennedy, writing for the majority of the United States Supreme Court,  held in the Masterpiece Cakeshop case that the Commission showed a “clear and impermissible hostility towards the sincere religious beliefs of Phillips the owner of the Masterpiece Cakeshop.”    Kennedy noted: “This sentiment 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. After all what could be more fundamental than making sure that the fact-finding board deciding the case was fair and impartial.

Opinion Was Narrow 

Justice Kennedy,  along with seven of the nine Justices, noted that the Commissioner’s had “a clear and impermissible hostility” towards the sincere and religious beliefs motivating Phelps based upon a comment made by one of the members of the Commission. This opinion was incredibly narrow not reaching any substantive issues.

Court Did Not Consider Free Speech Claim

Even though the majority opinion rejected the free speech claim the opinion of Justice Gorsuch, joined by justices Alito and Thomas would have accepted the free speech based upon the principal that no one “…can … reasonably doubt that a wedding cake without words conveys a message.” “Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding.” Obviously, with three Justices accepting the free-speech claim this theory is alive and will be the subject of intense future litigation considering that a more conservative judge, in all likelihood, will replace Justice Kennedy.

Majority Opinion Rejected Broad Exemption for Religious Motivated Merchants: 

The majority Opinion rejected a broad exemption for religiously motivated merchants, noting that gay persons and gay couples should not be treated as social outcast or as inferior in “dignity or worth.”  The courts with respect to the exercise of freedom by gays should give great weight on terms equal to others.

 What Is Next

The opinion,  written by Justice Kennedy immediately raises the question if the tea leaves provide any clues as to how the Court might rule without his presence. While seven of the Justices agreed that the Commission showed a deep and abiding prejudice towards religion,  the Justices split on  other aspects of the case. Two Justices, would have found that the refusal to bake a cake for a gay couple violated the public accommodations  law. Two Justices, in a concurring opinion,  would have rejected the example, relied upon by the majority, that the refusal to bake a wedding cake that was disparaging to gay couples  was a violation based on a plain and simple reading of the language of the Colorado law. Three Justices, would have found that the actions of the Cakeshop were not discriminatory because free speech protected the refusal of the Cakeshop to bake a wedding cake.  That leaves Chief Justice Roberts as the unknown swing vote  –   although Chief Justice Roberts seemed to be firmly in the camp of Justice Kennedy in that “…gay persons and gay couples should not be treated as social outcast or as inferior in dignity or worth.”) As you can see the tea leaves certainly do not answer the question about future cases but watch Chief Justice Roberts as the potential swing vote.  Plan on staying tuned because there is more to come. The interest groups, on both sides of this highly charged question, are well financed and highly motivated promising a fertile field for continued litigation.

Local Government should focus on training for members of boards and commissions who engage in determining “rights, duties, and obligations” under the law.  Training should include examples, like what happened in this case, showing how comments by a fact finding board member can be used to show bias and prejudice.  Particularly when a case is highly charged, local government attorneys should exercise extra caution by providing advice in advance to the board chairman and its members.  It seems to me that a written statement could easily be drafted for the board to remind them of the duties prior to taking up a case. Why not develop a written statement,  like a jury instruction, that  boards and commissions members sign, pledging that they will consider the matter based on the facts?

Howard Wright – Copyright 2018

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