The U.S. Supreme Court sidestepped making a major decision in the Masterpiece Cakeshop case pending before the court, issuing a narrow decision based on the facts of the lawsuit in favor of a Colorado baker sued for refusing a wedding cake to same-sex couple.
In the 7-2 decision written by U.S. Associate Justice Anthony Kennedy, the Supreme Court vacates the decision by the Colorado Court of Appeals against baker Jack Phillips on the basis the state commission handling his case displayed a religious bias against him.
“When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires,” Kennedy writes.
Kennedy concludes his ruling by making clear it provides no precedent for cases in which in individuals and businesses assert a First Amendment right to refuse service to same-sex couples, insisting that determination must come at a later time.
“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,” Kennedy writes.
As evidence of the Colorado Civil Rights Commission’s hostility toward Phillips’ religious views, Kennedy cites language the commissioners used as they heard the case in 2014, including one commissioner’s words that religious views are “one of the most despicable pieces of rhetoric that people can use.”
During oral arguments in the case before the Supreme Court, Kennedy has expressed concern over these words from the commission, prompting observers to speculate might issue a decision punting in the case and remanding it for reconsideration without hostility toward religion.
In the decision, Kennedy writes those words from the commissioner demonstrates hostility towards Phillips’ religion both by describing it as despicable and by characterizing it as merely rhetorical.
“This 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,” Kennedy writes.
The decision will likely mean the Colorado Civil Rights Commission will rehear the case, although there’s no reason to think the outcome will be different even if the commissioners approach it differently as advised by Kennedy.
It also means the long-running case against Masterpiece Cakeshop, filed by Charlie Craig and Dave Mullins back in 2012 when Phillips refused to make them a custom-made wedding cake, hasn’t reached its finish line at the Supreme Court and likely will continue to proceed.
After the couple sued six years, the Colorado Civil Rights Commission ruled in their favor in 2014 and the Colorado Court of Appeals upheld that decision a year later. Phillips filed a petition before the U.S. Supreme Court to review those rulings, which the Supreme Court accepted last year shortly after the confirmation of U.S. Associate Justice Neil Gorsuch.
Attorneys representing both sides in the case declared victory to some extent, with the American Civil Liberties Union, which represented the couple, insisting non-discrimination principles were upheld and Alliance Defending Freedom, which represented Phillips, calling the decision a victory for “religious freedom.”
Louise Melling, deputy legal director of the ACLU, said in a statement the Supreme Court essentially punted in the case without making a major decision.
“The court reversed the Masterpiece Cakeshop decision based on concerns unique to the case but reaffirmed its longstanding rule that states can prevent the harms of discrimination in the marketplace, including against LGBT people,” Melling said.
Kristen Waggoner, who argued the case for Phillips before the Supreme Court as senior counsel to Alliance Defending Freedom, said in a statement the ruling was a win for her client.
“Government hostility toward people of faith has no place in our society, yet the state of Colorado was openly antagonistic toward Jack’s religious beliefs about marriage,” Waggoner said. “The court was right to condemn that. Tolerance and respect for good-faith differences of opinion are essential in a society like ours. This decision makes clear that the government must respect Jack’s beliefs about marriage.”
Joining Kennedy in the decision was U.S. Chief Justice John Roberts as well as U.S. Associate Justices Stephen Breyer, Samuel Alito, Elena Kagan, Gorsuch and Clarence Thomas. Dissenting in the ruling was U.S. Associate Justices Ruth Bader Ginsburg, who was joined by U.S. Associate Justice Sonia Sotamayor.
In her dissent, Ginsburg writes the long process in which the case was reviewed by the Colorado Civil Rights Commission and appealed to the Colorado Court of Appeals should abrogate any concerns about religious liberty.
“I see no reason why the comments of one or two commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins,” Ginsburg writes. “The proceedings involved several layers of independent decision-making, of which the commission was but one.”
The decision means that a final determination from the court on whether individuals and businesses have a First Amendment right to discriminate against same-sex couples may come a later time. That decision could come result from a petition pending before the court in a similar case filed by Arlene’s Flowers, a floral shop in Washington State seeking a First Amendment to refuse service to same-sex weddings.
Many predict Kennedy will step down from the bench at the end of this Supreme Court term. If that happens, the Supreme Court could issue a decision that makes precedent on this issue with whomever President Trump appoints to replace Kennedy. That justice could be an anti-LGBT pick as opposed to Kennedy, who has authored major gay rights decisions.
Image is from Washington Blade file photo by Michael Key