Published in NH Business Review (8/31/2018)
U.S. Supreme Court’s ruling in favor of baker in same-sex wedding cake refusal leaves unanswered questions.
On June 4, in the case Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the U.S. Supreme Court ruled in favor of Jack Phillips, a professional baker who refused to create a custom wedding cake for a same-sex couple’s wedding.
The case raised complex constitutional issues of free exercise of religion and freedom of speech and was closely watched due to the potential impact on public accommodation nondiscrimination laws across the country. Ultimately, the court avoided answering the most complex questions raised by the case, ruling instead on the basis of governmental bias.
What was the case about?
In mid-2012, same-sex couple Charlie Craig and Dave Mullins entered Jack Phillips’s bakery, Masterpiece Cakeshop, to request a custom wedding cake for their upcoming wedding. A devout Christian, Phillips told the couple that he does not make wedding cakes for same-sex weddings, but he would sell them other baked goods. He explained that he felt creating a wedding cake for such an event would amount to a “personal endorsement and partici-
pation in the ceremony and relationship.”
The couple filed a charge of discrimination against Phillips and his bakeshop with the Colorado Civil Rights Commission, arguing that as a place of public accommodation, Masterpiece Cakeshop and Phillips were prohibited by state law from discriminating against them on the basis of their sexual orientation. The commission agreed with Craig and Mullins, and a Colorado court upheld the commission’s decision. Phillips then petitioned for review to the U.S Supreme Court.
What did Phillips argue?
Phillips argued that the commission’s order violated his First Amendment right to freedom of speech. Phillips likened himself to an artist and his wedding cakes to a “temporary sculpture celebrating the marriage.” Because the government normally cannot constitutionally compel speech, a critical issue underlying Phillips’s argument was the extent to which certain commercial actions — like baking a wedding cake for a paying customer — might amount to speech or expression protected by the First Amendment due to their artistic nature.
The U.S. Supreme Court previously has held that the freedom of religion ordinarily does not excuse individuals or business owners from complying with laws that are both “neutral” and “generally applicable.” However, Phillips contended that the commission’s enforcement of Colorado’s nondiscrimination law in this context did not satisfy these requirements. Phillips pointed to a separate similar case, in which the commission had found that three other bakers had not unlawfully discriminated when they refused a customer’s request to create a cake expressing opposition to same-sex marriage alongside religious text. The Commission had found that the bakers had refused the customer’s request not because of his religion, but because of the “offensive nature” of the message the customer had requested for the cake.
Phillips argued his refusal was not based on Craig’s and Mullins’s sexual orientation, but to the “ideas about marriage” that a cake for a same-sex wedding would convey, and therefore the Commission should have found his conduct lawful as well.
What did the Supreme Court hold and why?
The Supreme Court ruled in favor of Phillips, but did not hold that Phillips’s cake-baking amounted to protected speech, or that Phillips’s religious beliefs constituted legal justification for his refusal to bake Craig and Mullins’s wedding cake.
Instead, the court found that the Commission for Human Rights had exhibited “clear and impermissible hostility” towards Phillips’s religious convictions during the course of the proceedings, and as a result, had not treated his case with the neutrality required by the First Amendment.
During a public meeting on the case, for instance, one of the commissioners described religion as “one of the most despicable pieces of rhetoric that people can use” to justify discrimination, referencing slavery and the Holocaust. Another commissioner suggested that Phillips can “believe what he wants to believe,” but could not act on his religious beliefs if he wanted to do business in the state.
The court found that such comments and the disparate treatment of Phillips’s case compared to other bakers, suggested that Phillips did not receive “neutral and respectful consideration” of the complex issues raised by his claim.
The court left open the question of how it would have ruled had the commission not exhibited hostility. The case’s unique factual context, the court stated, had presented “difficult questions” of how to reconcile government’s right to protect the “rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services” and the “right of all persons to exercise fundamental freedoms under the First Amendment.”
The Supreme Court instructed, however, that any future disputes involving similar cases “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.”
One similar case from the Supreme Court of Washington, involving a flower shop’s refusal to create custom floral arrangements for a same-sex wedding, already has been sent back by the U.S. Supreme Court for further consideration in light of the Masterpiece Cakeshop case. And in an Arizona state case, a state court ruled recently that a stationery store’s “design and sale of customized wedding event merchandise” did not amount to protected speech, and therefore the store’s Christian owners could not refuse to create stationary products for same-sex weddings. More cases undoubtedly are to come.