On June 4, the Supreme Court issued its long-awaited decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The Colorado civil rights agency held that the cakeshop owner and baker, Jack Phillips, had violated the State’s law against sexual orientation discrimination when he refused to provide a gay male couple with a wedding cake to celebrate their union for religious reasons. Phillips argued that the State had violated his constitutional rights under the First Amendment – which protects the free exercise of religion, and freedom of speech – because his wedding cakes are expressions of his beliefs.
What the Supreme Court said. By a vote of 7 to 2, the Supreme Court ruled that the Colorado Commission had violated Phillips’ right to the free exercise of his religion because it had failed to treat his case impartially. Instead, the Commission had been influenced by bias against his religious beliefs – which the Constitution prohibits. The Court’s majority concluded that the State proceeding had been tainted by anti-religious bias for two reasons: (1) two of the Commissioners had publicly expressed what the Court viewed as anti-religious opinions, and the Commission had never repudiated those views; and (2) in other cases, the Commission had ruled that bakers who refused to make wedding cakes that contained anti-gay or anti-gay marriage messages had not discriminated on the basis of religion, but Phillips had discriminated on the basis of sexual orientation when he would not make a cake for a same-sex wedding.
Justice Kennedy, joined by five other Justices – including Justices Kagan and Breyer, but also Chief Justice Roberts – characterized the question of how to balance Colorado’s nondiscrimination law against Phillips’ religious beliefs as “difficult” and “delicate.” Postponing many questions for another day, the majority concluded that the Commission’s bias violated Phillips’ freedom of religion, but implied that the gay couple might have won if the Commission had been impartial and “respectful” of the baker’s religious beliefs. The majority did not decide the issue of Phillips’ freedom of speech/expression (as distinct from the freedom of religion issue). The majority opinion concluded (Opinion of the Court, p. 18):
The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must 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.
Justices Kagan and Breyer wrote separately to emphasize that in their view, the gay couple should have won except for the Commission’s expressed bias. Two right-leaning Justices who joined Kennedy’s opinion – Gorsuch and Alito – also wrote separately, to say in that in their view, Phillips had to win since the Commission had ruled in other cases that it was not discriminatory to refuse to make wedding cakes with anti-gay messages. Justice Thomas, joined by Gorsuch, issued a separate opinion to say that wedding cakes are forms of speech or expression and that in his view, Phillips had a freedom of speech right to refuse to make a cake for a gay wedding. Justices Ginsberg and Sotomayor dissented, and held that the gay couple should have won.
Masterpiece Cakeshop was decided for the cakeshop owner/baker on narrow grounds, and advocates for LGBTQ rights are justifiably reassured that six Justices joined an opinion that contains strong language about the importance of enforcing laws protecting against sexual orientation discrimination. The opinion specifically noted that any exception for the religious beliefs of a business owner would need to be carefully limited. The majority declared:
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. … [W]hile … religious and philosophical objections [to same-sex marriage] 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. (Opinion of the Court, p. 9)
… [I]f [an] exception [for religious views] 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. (p. 10)
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. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court’s precedents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law. (p. 10)
…[A]ny decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons. (p. 12)
Nevertheless, the majority opinion signaled that religious beliefs may justify actions by a business that would otherwise violate nondiscrimination laws in certain circumstances. And at least three Justices – Gorsuch, Alito and Thomas – clearly stated their sympathies with Phillips and signaled interest in broader exemptions. Justice Kennedy may retire from the Court in the next several years if not sooner, and Chief Judge Roberts, compared to the other Justices, was strikingly silent (other than signing into Kennedy’s majority opinion).
What are the implications for future cases? It is almost a certainty that the “religious right” will feel encouraged by Masterpiece Cakeshop to launch new challenges to laws that protect LGBTQ people from discrimination. Advocates for LGBTQ rights – and for nondiscrimination laws generally – will need to remain vigilant and pay a great deal of attention to important questions that the Supreme Court left unanswered. There are at least two fundamental questions that are certain to arise in future cases:
When does providing a good or service convey a message that may interfere with the vendor’s religious beliefs/expression? The Supreme Court did not answer this question, even with regard to wedding cakes. Justice Kennedy’s majority opinion hints that a “wedding cake” is different from an “ordinary” cake that a customer might purchase for their wedding. But what makes a cake a “wedding cake” that expresses a view about the wedding in question? A cake that looks like a traditional “wedding cake” but contains no words or images? A cake that includes a bride and a groom, or two grooms, or two brides? A cake that contains words like “Charlie and Dave – love forever,” or “Charlie and Dave” above a heart?
Moreover, how does the First Amendment apply to goods and services other than wedding cakes? What about wedding-related services such as photography, flowers, rental of venues, rental of gowns and tuxedos, catering, wedding announcements?A number of state courts, ruling on religious-exercise of free-speech challenges to LGBTQ anti-discrimination laws, have concluded that providing customized goods and services for same-sex weddings and commitment ceremonies – including flowers, stationary and rentals of spaces – are not “expressive” conduct that implicates the First Amendment. Only three days after Masterpiece Cakeshop, the Arizona Court of Appeals so ruled in rejecting a challenge by a stationary business to Phoenix’s nondiscrimination ordinance. Brush & Nib Studio v. City of Phoenix, filed June 7, 2018.
Even more important questions arise outside the marriage context.What about other goods and services to same-sex couples – such as rentals of apartments, hotel rooms, and bed & breakfast inns? What about home sales? Adoption and foster care placements? What about health care-related services: insurance coverage for same-sex spouses, fertility services for same-sex couples or an LGBTQ single person, nursing homes and home health care, or gender transition care?
Some religious traditions and voices on the “religious right” argue that freedom of religion includes not only my freedom to act or refrain from acting in ways consistent with how my religious beliefs apply to my own life, but also the freedom to refrain from “enabling” others to act in ways that my religion believes are wrong. Masterpiece Cakeshop does not support such a radical, expansive view. In fact, the majority opinion (supported in this regard by the dissenters, Justices Ginsberg and Sotomayor) emphasizes that religiously-motivated refusals to serve – that harm others – probably do not qualify for First Amendment protection. The majority opinion cautions against religious claims that would stigmatize gay persons by widespread refusals of goods and services. Religiously motivated refusals that would likely cause actual physical harm, such as denials of health care, presumably would merit even less judicial support. However, LGBTQ people certainly encounter many denials of care and other forms of harmful discrimination that are allegedly motivated by religious objections to homosexuality, or same-sex marriage, or LGBTQ parenting, or gender transition. And these objections appear to have support in the current Federal Government; HHS’ proposed rule to expand the “conscience rights” of health care providers and staff is a troubling example.
If a specific action – selling goods, or providing a service – is sufficiently “expressive” to give rise to a First Amendment claim of free exercise of religion or free expression, how should the First Amendment interest be balanced against the interest in protecting LGBTQ people from discrimination?The Masterpiece Cakeshop majority describes this issue as “difficult” and “delicate” and concludes with the following language which many may find unhelpful:
The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must 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. (p. 18)
Supreme Court precedents hold that laws of general application that are neutral as to religion and individual belief, and are not intended to single out or penalize a religious or philosophical point of view, do not implicate the First Amendment. The Masterpiece Cakeshop majority opinion contains language consistent with these precedents, and Justices Ginsburg and Sotomayor would agree. However, Justices Gorsuch, Alito and Thomas signal reservations about these precedents, and many on the “religious right” are intent on undermining them.
Aside from the First Amendment, the Religious Freedom Restoration Act, which applies to the Federal Government and to District of Columbia laws (but not to the states), provides that “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”42 U.S. Code § 2000bb–1(b). Forces on the “religious right” are very likely to invoke this statute to challenge laws and regulations prohibiting sexual orientation and gender identity discrimination. There are strong arguments that there is a compelling public interest in protecting LGBTQ people from discrimination, and that enforcing nondiscrimination laws uniformly, regardless of personal religious or philosophical belief, is the only way to further that compelling interest. How the courts will rule remains to be seen. However, Justice Kennedy’s statement that “[i]t is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals” (page 10) very helpfully implies that there is a strong governmental interest in protecting LGBTQ persons just as there are strong governmental interests in combating, for instance race and sex discrimination.
Just three days after Masterpiece Cakeshop, the Arizona Court of Appeals rejected a challenge by a stationary business to Phoenix’s nondiscrimination ordinance, holding that any burden on the religious-exercise and free-speech rights of Christian owners of a stationary store were outweighed by the city’s interest in combating sexual orientation discrimination and that applying its nondiscrimination law to all public accommodations was the only way to advance that interest. Brush & Nib Studio v. City of Phoenix, filed June 7, 2018.
Masterpiece Cakeshop reinforces the importance of continued vigilance by the LGBTQ community, and of continuing efforts to win hearts and minds to understand that discrimination against LGBTQ people in the public sphere and in the marketplace is inconsistent with our fundamental values – including our religious values. Whitman-Walker remains committed to providing welcoming, affirming care for all – and to legal and public policy advocacy to advance our vision of a society where everyone is seen and is treated equally.
