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Conclusion: Bread-Breaking Time at SCOTUS: How a Narrow, Process-Based Free Exercise Clause Loss for Colorado Can Still Be Positive (if not a Win) for the LGBT Community

Welcome to the eighth and final part of a guest blog series titled Frosting on the Cakes: Non-Discrimination Laws, First Amendment in the Mix at Supreme Court (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111). We are joined by guest author Chad M. Eggspuehler to look at the conclusion. Chad can be reached at [email protected]ellis.com.

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Well, after much anticipation, the Supreme Court handed down its Masterpiece Cakeshop decision, ruling 7-2, in an opinion penned by Justice Kennedy, that the Colorado Civil Right Commission violated the First Amendment Free Exercise Clause rights of the baker, Jack Phillips.  Those reading or viewing various news networks’ hot takes may be discouraged, even devastated—We Lost, and WE LOST BAD!  Justice Kennedy Betrayed Us!!  Even Justices Breyer and Kagan RULED AGAINST US!!!

Not so fast.

Because if we were going to lose this case, this is the BEST possible loss I could have imagined.  No free speech holding, and limited to the Commission’s disparate treatment of Mr. Phillips’s religious views from other viewpoints.  Trust me, we need not strain hard to find a silver lining, because the “losing” side in this case received a silver platter.  For instance:

  • The majority opinion (i.e., the binding rule of law for non-lawyers) begins its legal analysis with the emphatic statement that “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.”

Further, while recognizing that religious faiths and practices are protected under the Free Exercise Clause, the Court reaffirmed the general rule established in Newman v. Piggie Park Enterprises (1968), among others, that “such [religious or conscience-based] 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.”  Indeed, as the Court continues, “[i]t 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.”

Six Justices adopted this reasoning, including such conservatives as Chief Justice Roberts and Justices Alito and Gorsuch.  This is a fantastic development for LGBT equality in this country.

  • The majority opinion completely sidesteps the First Amendment free speech argument, the broadest argument advanced by the bakery. While conceding that “[t]he free speech aspect of this case is difficult,” it gave no credence to the baker’s argument that each of his wedding cakes is a custom work of art entitled to free speech protection, whether under a symbolic speech or compelled speech theory.  Indeed, the most the Court had to say on the topic was: “few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech,” coupled with the vague observation that “the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.”

The Court’s silence in this regard is surprising, and pleasantly so, in that the free speech issue was a central part of the Colorado Court of Appeals’ decision.  (It rejected the free speech claim.)  Though advocates for the bakery will no doubt continue to argue for broader free speech protections entitling them to turn away LGBT customers—what LGBT advocates might refer to as a “license to discriminate”—the overwhelming majority of the Court indicated that it will not stretch the First Amendment that far.  Only Justices Thomas and Gorsuch, who wrote separate concurring opinions (i.e., non-binding opinions) were willing to find a free-speech violation.

Activists and advocates outside of the Supreme Court June 4th, 2018 after the ruling.

 

  • In ruling for the bakery, the Court stresses the importance of states’ public accommodations laws in prohibiting discrimination against LGBT persons in the marketplace. Notably, the Court does not strike down or abrogate Colorado’s public accommodations protections for LGBT citizens.  Nor does it state that Mr. Phillips can lawfully refuse to sell LGBT customers a wedding cake, or that Colorado law cannot prohibit such discrimination.

Rather, the Court instructs that its “precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws.”  And it repeatedly states that refusing service to LGBT customers—like the refusal of service to any protected class—would result 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.”

Indeed, tipping their gavels to the state’s important interest in combatting discrimination in the marketplace, the Court seemingly concludes that the baker here could only win by narrow means: “any 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.”  The Court fact that this case arose from a request for wedding-related goods did not diminish the vitality of the public accommodations law.  See Slip Op. at 10 (“When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion.  . . . Yet if that exception 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.” (emphasis added)).

This analysis is good for the LGBT community, as it rejects the United States’ argument (as an amicus) that LGBT discrimination is somehow less worthy of legal protection than other forms of discrimination.  And it also recognizes that same-sex weddings and equal access to wedding related services are not beyond the reach of public accommodations laws, but in fact may permissibly be protected by them.

The majority rested its holding on the Commission’s process of reviewing Mr. Phillips’s case, not the substance of his religious views or perceived symbolic speech.  The Court broke no new ground in recognizing that the state has an “obligation of religious neutrality.”

  • The Court takes great pains to note the peculiar timing of the denial of service in this case, coming at a time (2012) when Colorado and a number of other states still did not recognize same-sex marriage. “Since the State itself did not allow those marriages to be performed in Colorado,” the Court reasoned, “there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State.”  The Court further noted that the Commission’s inconsistent positions cake-messaging at the time, which “afforded storekeepers some latitude to decline to create specific message the storekeeper considered offensive.”

While these statements do not operate as a sunset provision on the Court’s holding, they expressly frame the dispute in the legal context of the time when it arose.  And that context will certainly be different for future disputes.

  • The Court concludes its opinion with the admonition that “[t]he 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.” In short, conscientious objectors are entitled to a fair hearing, but that does not mean they have a broad right to refuse LGBT customers.

The majority rested its holding on the Commission’s process of reviewing Mr. Phillips’s case, not the substance of his religious views or perceived symbolic speech.  The Court broke no new ground in recognizing that the state has an “obligation of religious neutrality.”  Here, that meant a neutral hearing by the Commission of the customers’ claim that Mr. Phillips unlawfully discriminated against them on account of sexual orientation.

Though it did not fully delineate the extent of the errors or how the Commission could have remedied them, the Court seized upon two aspects of the Commission’s analysis that were problematic:

  1. Hearing Bias: “elements of a clear and impermissible hostility toward . . . sincere religious beliefs” by the commissioners during their hearing of Mr. Phillips’s case; and
  2. Disparate Treatment, Other Bakers’ Objections to Different Cake Order: the Commission permitted other bakeries to object to anti-gay cake messages because those messages were “offensive,” and permitted them to sell alternative items to that customer, but summarily rejected Mr. Phillips’s objection to what he deemed to be an offensive message and his professed willingness to sell other items to the same-sex couple.

Of these rationales, advocates for Mr. Phillips will likely celebrate the second rationale as constitutional protection for a right to refuse LGBT customers.  But that would be going much too far, for two reasons.

The ruling contains strong affirmation of LGBT-inclusive nondiscrimination protections.

First, the Court stressed that its two rationales were interrelated, in that both reflected the Commission’s hostility (and non-neutrality) to Mr. Phillips’s religious views.  Indeed, the Court detailed no fewer than three comments by Commissioners as indicative of their hostility, including the statement that “religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, . . . we can list hundreds of situations where freedom of religion has been used to justify discrimination.  . . . [I]t is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

This “despicable pieces of rhetoric” comment may well be the “You Can’t Handle the Truth” moment in this case.  As the Court thoughtfully points out, “[t]his sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.”  Slip. Op. at 14 (emphasis added).  Neither the full Commission nor the Colorado Court of Appeals disavowed these comments or attempted in any way to remedy their prejudicial impact on Mr. Phillips’s hearing—a point the Court could not overlook.

Second, the Court specifically notes that “[a] principled rationale for the difference in treatment of these two [types of cake orders] cannot be based on the government’s own assessment of offensiveness,” citing the infamous line from West Virginia Board of Education v. Barnette (1943) that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”  The Colorado Court of Appeals compounded the error of the Commission by distinguishing the two types of cake orders on the ground that only one of the two (the anti-same-sex-marriage cakes) presented an “offensive” message.  The Court further objects to the Commission’s inconsistent reliance on the availability of alternative goods, permitting them in the other bakery cases, but not in Mr. Phillips’s case.

These statements should not be read as a blanket conclusion that religious objectors can refuse to sell goods (even wedding-related goods) to LGBT customers.  Indeed, the Court insists that the “State’s interest [in preventing discrimination against LGBT persons] could have been weighed against [the baker’s] sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed.”  Whether that means that the Commission should have required the other bakeries to prepare anti-LGBT cakes, or to rest on another legal justification for distinguishing between the two types of cake orders, we do not yet know.  But, suffice to say, the Court did not rule that the First Amendment protects conscientious objectors’ right to refuse to sell goods to LGBT customers.

For all of the hyperbole following this opinion, we can rest assured that a solid majority of the Supreme Court understands the importance of public accommodations laws and recognizes that states may properly extend those laws to grant LGBT citizens equal access to the marketplace. It ruled on narrow, process-based grounds because it chose to do so.  It preserved Colorado’s public accommodations law that guarantees LGBT citizens equal access to the marketplace.  And, in a masterstroke by Justice Kennedy and his colleagues, the majority brought along six Justices (some of whom I never would have predicted) in recognizing that LGBT citizens deserve equal legal access to goods and services in the marketplace.  Slip Op. at 9 (“[T]he laws and the Constitution can, and in some instances must, protect [gay persons and gay couples] in the exercise of their civil rights.”); id. at 18 (instructing courts to address future conscientious objection claims without hostility to religious viewpoint and  “without subjecting gay persons to indignities when they seek goods and services in an open market”).

These statements should not be read as a blanket conclusion that religious objectors can refuse to sell goods (even wedding-related goods) to LGBT customers.  Indeed, the Court insists that the “State’s interest [in preventing discrimination against LGBT persons] could have been weighed against [the baker’s] sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed.”

Some may disagree with my reading of the Court’s opinion as that of a cock-eyed optimist.  But even as I read the decision this morning, I received dozens of texts and emails asking Is this loss really a win?  As one colleague put it, this looks like a “half-loaf” decision.

I, for one, will celebrate this half-loaf decision as much as I can. I appreciate its ability to deal with sensitive, “difficult” issues (a word the Court uses repeatedly) and ultimately reaffirm the importance of public accommodations laws in this context.  I also appreciate its thoughtful defense of religious liberty and freedom of conscience, even when we disagree with others’ viewpoints.  Freedom of religious exercise and conscience are constitutional rights that we should all cherish, and which need not be in conflict with full legal equality for the LGBT community.

States (like Ohio) can and should continue to pass public accommodations protections for their LGBT citizens like Colorado did.  And lawyers supportive of LGBT equality should continue to defend those public accommodations laws against businesses who discriminate against LGBT customers.  Today’s ruling is but a temporary detour, not a dead-end on the path to equality.

For those disappointed by today’s result (and that includes me, at least a little bit), perhaps we should take Tina Fey’s advice and order a sheet cake, knowing all the while that the outcome could have been much worse.  And tomorrow, we roll up our sleeves and continue our push for LGBT equality, armed with the guidance from today’s decision.

Chad M. Eggspuehler is a member of the Tucker Ellis Appellate & Legal Issues Group. Before joining Tucker Ellis, he clerked for federal trial and appellate judges in New Jersey and Ohio, including the Honorable Deborah L. Cook, Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit. All views expressed here are those of the author. Chad can be reached at [email protected]