Did Masterpiece Cakeshop Engage in Illegal Discrimination?
Apparently we will never know.
Yesterday, the United States Supreme Court handed down its decision in Masterpiece Cakeshop, Ltd. v. The Colorado Civil Rights Commission. In the case as presented to the Court, the question was whether Masterpiece Cakeshop and its owner, Jack Phillips, a self-professed devout Christian, engaged in illegal discrimination by refusing to create a wedding cake for Charlie Craig and Dave Mullins. Phillips argued that creating a cake is expressive conduct, and that he could not, consistent with his belief that marriage is between one man and one woman, create a cake that would message to third parties his approval of a same-sex marriage. In contrast, Craig and Mullins asserted that they had been discriminated on the basis of their sexual orientation in violation of Colorado law. It had been expected that there would be a close decision drawing the line between, on the one hand, Free Exercise of Religion and First Amendment rights of expression (e.g., does a wedding cake convey any message from the baker, or rather is it a message of the persons being married?) and state laws barring discrimination based upon sexual orientation. The decision of the Supreme Court was, rather than a bang, rather only a whimper. The Court avoided all of those questions, ruling only that an administrative ruling issued at the beginning of this case by the Colorado Civil Rights Commission was improper, thereby undercutting the entire case.
After Craig and Mullins were denied service at Masterpiece Cakeshop, they filed a claim for discrimination under the Colorado Anti-Discrimination Act. Thereafter the matter worked its way through the adjudicative process. In the course thereof, the Civil Rights Commission, through various of its commissioners, expressed a number of statements fairly interpreted as being anti-religious. Writing for the Court, Justice Kennedy found that these statements were derogatory of Phillips’ of religious beliefs. Ultimately, these statements violated the principle that the government must be absolutely neutral with respect to religious views. Justice Kennedy wrote:
The Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion. Here, that means the Commission was obligated under the Free Exercise Clause to proceed in a manner neutral and tolerant of Phillips’ religious beliefs. The Constitution “commits government itself to religious tolerance, and even upon slight suspicion the proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.”
…. In view of these factors the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phillips’ religious beliefs. …. It hardly requires restating that government has no role in deciding or even suggesting that the religious ground for Phillips’ conscious-based objection is legitimate or illegitimate. Slip op at 17 (citations omitted).
On that basis, the determination by the Colorado Civil Rights Commission that formed the basis of the determination that Masterpiece Cakeshop had engaged in impermissible discrimination was set aside.
Still, there are aspects of the opinion, admittedly dicta (i.e. not part of the holding and not binding upon any other court) through which, at minimum, Justice Kennedy indicated that proprietors should be very careful before deciding to refuse service to those in a protected class. For example, it was stated that:
[W]hile 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 the goods and services under a neutral and generally applicable public accommodations law. Slip op. at 9.
As for the point that was initially to be the central question of Masterpiece Cakeshop, it will ultimately be resolved. Dozens of cases are working their way through the system as to whether bakers, florists, and other goods and service providers in the wedding industry must offer those goods and services freely irrespective of the sex of the intended spouses or, in the alternative, whether a particular purveyor’s religious views will protect them from discriminatory actions. Some of those cases will be up for consideration by the United States Supreme Court next year.
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