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Posted on Tuesday, June 12, 2018

The Supreme Court Takes the Cake

Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, ___ U.S. ___, No. 16-111 (4 June 2018)

This is a case in which one Constitutional right collided with two other Constitutional rights and presented the Court with a difficult decision.

Mr. Phillips operates the Masterpiece Cakeshop.  Phillips is not an ordinary run-of-the-mill baker.  He considers himself an artist who designs and creates cakes that are masterpieces.  Phillips takes exceptional care with each cake that he creates – sketching the design out on paper, choosing the color scheme, sculpting the cake, decorating it and delivering it to the event.  If the event is a wedding, Phillips meets with the couple for a consultation before he before he creates the custom wedding cake.  He discusses their preferences, personalities, and the details of their wedding to ensure that the cake reflects the couple who ordered it.  The Court said that Phillips uses artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation.

Messrs. Craig and Mullins are a homosexual couple who were engaged to be married.  They contacted Phillips for the purpose of ordering a wedding cake.   But there was a problem.  Phillips is a devout, fundamentalist Christian who believes that homosexual marriage is against God’s commandments.  There was no dispute that Phillips is sincere in his religious belief.  He told Craig and Mullins that he would not design and bake their wedding cake because to do so would show his approval of homosexual marriage and run contrary to his religious belief.  He told them he would sell them other products, including birthday cakes, but not a wedding cake.

Craig and Mullins were more than just disappointed, and they filed a complaint with Colorado’s Civil Rights Commission, asserting that Phillips had violated the Colorado Anti-Discrimination Act (CADA) which provides:

It is a discriminatory practice and unlawful for a person to refuse . . . an individual . . . the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

The Act defines “public accommodation” broadly to include any “place of business engaged in any sales to the public and any place offering services to the public.

Colorado’s Civil Rights Commission conducted an investigation and public hearings and ruled that Phillips had violated the CADA.  During the Commission’s consideration of Phillips’s case, members of the Commission demonstrated “clear and unmistakable hostility” toward Phillips’s sincere religious beliefs that motivated his refusal to bake the wedding cake.  Members of the Commission made dismissive comments showing a lack of due consideration for Phillips’s free exercise of his religious rights.  One member said:

Freedom of religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust . . . it is one of the most despicable pieces of rhetoric that people can use – to use their religion to hurt others.

The Court said that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication.  The State’s hostility toward religion must not be a factor when deciding if a person’s free exercise of religion should yield to an otherwise valid exercise of State power.

Usually equal protection to public accommodations prevails over religious objections to equal treatment.  “At the same time, religious and philosophical objections to gay marriage are protected views and, in some instances, protected forms of expression.”  The Commission’s deliberations disparaged religion in two ways: 1) by describing Phillips’s claim to freedom of religion as “despicable,” and 2) by characterizing his objection as merely rhetorical – something insubstantial and insincere.  The State has a duty under the First Amendment not to base laws or regulations on hostility to religion or religious belief.  The Free Exercise Clause bars even subtle departures from neutrality on matters of religion.  Even the slightest suspicion that State intervention stems from animosity to religion is unacceptable.

The Court went on to say that the government has no role in deciding or even suggesting whether the ground for conscience-based objection is legitimate or illegitimate.  That statement begs a very large question.  In many cases, a conscience-based objection is grounded on religion, and the court or agency must first decide if the asserted ground is legitimately a subject of religion.  Doing that necessarily entails deciding an issue of religious legitimacy.  The instant case is an example.

As an aside, consider the problem in this way.  Many people believe that religion is, and should be, concerned only with big, universal questions.  Does God exist?  What is the nature of God?  What is man’s relation to God?  Is God the personal God of Abraham and Luther or the impersonal God of Spinoza and Einstein?  Or, the biggest question of all, why is there something and not nothing?  But many people extend religion to more mundane questions, such as gay marriage, headscarves, eating bacon, and wedding cakes.  There is no way to rationally determine the scope of religion because religion begins where reason ends.  We do not know religion, we choose to believe it (or not).  After all, with our limited sensory and mental equipment, we can understand the world only in terms of measurable matter, measurable time and space.  The stuff of religion cannot be measured.  We can say the word “infinity” and speak of infinite time and space or of the beginning and ending of time, but we can never truly understand what that means.  Infinity is beyond our intellectual comprehension but not beyond our religious belief.

Who, then, has the authority to decide whether or not gay marriage or wedding cakes are proper subjects of religion?  The Court said that “[j]ust as no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.”  Justice Gorsuch hammered home this point in his concurring opinion, stating that a person alone is entitled to define the nature of his religious commitments.  Under our system it cannot be any other way.  The Court is not the Pope or a panel of Imams ruling on religious dogma.

But therein lies the conundrum.  The Court says that it has no role in deciding questions of religion, but when it holds, as here, that a religiously-based objection to gay marriage is entitled to “neutral and respectful consideration,” then it is deciding that opposition to homosexual marriage is legitimately within the scope of religion, and thereby it is indeed deciding a question of religion.

In her dissenting opinion, Justice Ginsburg tries to sidestep the conundrum by arguing that the case is simply about a cake, about a product made of flour, eggs and water.  It involves no elevated question of religion, and many people would agree with her.  Justice Sotomayor did.  However, in her dissent, Justice Ginsburg is implicitly deciding that, in the context of the case, baking a wedding cake cannot be the legitimate subject of religious commitment.  She, too, is issuing a religious decree.

If the case is decided on the free exercise of religion clause, then there is no way out of the conundrum; and that is why I think Justice Thomas’s concurring opinion has the better approach.  Justice Thomas focuses on the free speech clause.  He starts by acknowledging the distinction between speech and conduct and that restricting conduct usually does not abridge free speech.  He also acknowledges that public accommodation laws usually do not target speech.  However, if speech is the public accommodation, then the free speech clause applies.  If conduct is intended to communicate and would reasonably be understood as communicative, then the conduct is expressive speech. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572 (1995); Boy Scouts of America v. Dale, 530 U.S. 640, 657-659 (2000).  On the facts of this case, when Phillips designs, bakes and decorates a wedding cake, he is engaging in expressive conduct, in speech.

Furthermore, free speech protects what a person chooses not to say.  Except in limited circumstances not relevant here, the government cannot compel speech.  The First Amendment prohibits the government from requiring a person to affirm a belief with which he disagrees.  If the government forces Phillips to create and bake one of his artistic cakes for a gay wedding, then it is forcing Phillips to affirm a belief with which he disagrees.  The government is unlawfully compelling speech.  Thus, on these facts, forcing Phillips to bake the cake violates the First Amendment.

This was a 7-to-2 decision.  Justices Kagan and Breyer concurred in the result in an opinion stating that they concurred only because of the biased adjudication by Colorado’s Civil Rights Commission.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at JPolk@BerenzweigLaw.com.