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Supreme Court's ruling - a balancing act ...

Free to express one's religion or to be free from discrimination?

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On June 4, 2018, the United States Supreme Court upheld the right of a self-described cake artist in Colorado to refuse to sell a wedding cake to a same-sex couple.

As framed by the Supreme Court, the issue in the case was, "whether applying Colorado's public accommodations law to compel Phillips [the baker] to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment."

In a 7-2 decision, the Supreme Court held that Phillips' religious beliefs were sincerely held, that he was protected under the Constitution's Free Exercise of Religion Clause, and that he therefore did not violate the state's public accommodations law.

The facts in the case were not disputed. David Mullins and Charlie Craig visited Masterpiece Cakeshop in a suburb of Denver, Colorado, in July 2012, to order a cake for their upcoming wedding reception. Because same-sex marriage was not legal in Colorado at the time, Mullins and Craig planned to marry in Massachusetts and then celebrate with family and friends at a reception in Colorado. But bakery owner Jack Phillips informed them that the bakery wouldn’t sell wedding cakes to same-sex couples. He did offer to sell the couple baked goods for other purposes but cited his religious objections to same-sex marriage as the reason for refusing to sell the couple a wedding cake.

Thereafter, Mullins and Craig filed a complaint with the Colorado Civil Rights Commission ("Commission"), which ruled that Phillips had engaged in sexual orientation discrimination under the Colorado Anti-Discrimination Act. The Commission's decision was affirmed by the Colorado Court of Appeals; the Colorado Supreme Court denied review; and the case was then accepted for review by the U.S. Supreme Court.

Majority opinion - a balancing act?
Justice Kennedy's majority opinion focuses on the conduct of the Commission, especially statements by some of the Commissioners, in finding that Phillips was not afforded a "neutral hearing that was tolerant of his religious beliefs." For example, one Commissioner stated: "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.”

Justice Kennedy viewed this statement as "disparaging" to Phillips' religion, particularly the references to slavery and the Holocaust. Said Kennedy, "This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation."

The majority opinion also notes three other cases involving bakers as evidence of the Commission's "hostilility" to Phillips' religious beliefs. In those cases, three bakeries were found not to be in violation of the public accommodations law when they refused to bake two cakes with anti-gay messages and images. The customer, William Jack, requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested on one side, ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, the one with the image of the two groomsmen covered by a red ‘X’, Jack requested these words: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’

Said the Court, "the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections." In other words, the three bakers who refused to bake cakes with homophobic messages were asserting the same right Phillips was asserting by refusing to bake a wedding cake for a same-sex wedding reception. The Commission was therefore inconsistent - and demonstrated religious intolerance - in finding that Phillips violated the public accommodations law while the other bakers did not.

What Justice Kennedy and the majority seem to be saying is that a balancing test must be applied to determine which right prevails - the freedom to express one's religion or the right to be free from discrimination. In applying this balancing test to future cases, "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."

Such a test may be difficult to apply in practice, however, and gives little guidance to courts on how to resolve such disputes when one party's sincere religious beliefs are respected. And when gay persons are denied goods and services because of their sexual orientation, how can such "indignities" ever be avoided? Kennedy's opinion makes clear that these are questions left for another day.

Dissenting opinion
Justice Ruth Bader Ginsburg's dissenting opinion merits mention. In it, she discounts the majority's reliance on the statements made by the Commissioners as evidence of bias against Philips' religious views.

She also notes her agreement with many of the statements made by the majority, including the general rule that religious and philosophical 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." In addition, the majority recognizes, “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.”

Under these principles - supported by all nine justices - Justice Ginsburg would have held in favor of Craig and Mullins. Justice Sotomayor joined Justice Ginsburg's opinion.

More to come - it isn't over
While significant, the Masterpiece Cakeshop case is the first in what may be many more decisions that pit religious freedom against same-sex or sexual orientation discrimination. Indeed, there are several cases pending in the lower courts that present the same or similar legal issues as Masterpiece.

What the Court did not decide was whether Phillips' refusal to bake a wedding cake was a protected form of expression - freedom of speech - under the First Amendment. That important issue will continue to be litigated and may ultimately end up back before the U.S. Supreme Court. Until then, the Masterpiece precedent will likely - and unfortunately - be used to justify discriminatory treatment of gays and lesbians in the provision of goods and services offered to the public.