Jun 12

Jun 12 SCOTUS Masterfully Avoids Legal Issues in Religion/LGBTQ Ruling By Daniel Tagliarina

One June 4, 2018 the Supreme Court handed down its ruling in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Long expected to be one of the term’s blockbuster rulings, the case ultimately fell flat. The case had the potential to further clarify the boundaries between religious belief and antidiscrimination protections for LGBTQ individuals.

This legal controversy has been simmering, at the very least, since the Court’s 2015 ruling in Obergefell v. Hodges, requiring states to license and recognize same-sex marriages. Obergefell left open questions of religious objections, as well as other level of protections for those who identify as LGBTQ.

While having the potential to address these larger questions, the ruling in Masterpiece ultimately found a way to ignore the larger debate it was expected to answer.

The Court was specifically asked to decide if the Colorado public accommodation laws, passed as part of the Colorado Anti-Discrimination Act (CADA), violated either the free exercise or free speech rights of a baker who could be forced to bake a cake for a same-sex marriage against his sincerely held religious beliefs.

CADA, in many ways, mirrors the protections granted to individuals in the Civil Rights Act of 1964, which, in part, prevented “discrimination or segregation on the ground of race, color, religion, or national origin” in “any place of public accommodation.” Building upon these protections, CADA prohibits discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.”

In July of 2012, Charlie Craig and David Mullins were looking for a wedding cake to celebrate their impending marriage. At the time, Colorado did not allow same-sex couples to marry, so Craig and Mullins were going to marry in Massachusetts, and then have a celebration in Colorado afterward. In looking for a cake, Craig and Mullins went to Masterpiece Cakeshop, and asked owner and head baker Jack Phillips for a wedding cake. Phillips told Craig and Mullins that he would make other cakes for them, or sell them other good, but because of his religious objections to same-sex marriage, he would not make them a wedding cake.

Craig and Mullins ultimately decided to file charges with the Colorado Civil Rights Division, following the procedures outlined in CADA, arguing that Phillips violated CADA by discriminating against Craig and Mullins on the basis of their sexual orientation. The Civil Rights Division allowed the case to move forward, a judge who enforces CADA found Phillips in violation, and the judge’s ruling was confirmed by the Colorado Civil Rights Commission. On appeal, the Colorado Court of Appeals upheld the determination of the Colorado Court of Appeals (as well as that of the judge who first heard the case). From here, the Supreme Court agreed to hear the case.

With anti-discrimination laws protecting sexual orientation coming into conflict with religious-based objections, it is easy to see how this case had the potential to clarify a currently ill-defined area of law and legal protections. However, the Supreme Court largely ignored the central question, effectively kicking that decision down the road to a later term, and the potential confusion of competing lower court rulings.

The Court, by a 7-2 vote, decided with Phillips, the baker. However, they did so in a way that does not really answer the central question in the case, and will require future cases to provide clarity on what the law requires. While this case is being heralded as a “narrow ruling,” we cannot actually know that at this point.

Justice Kennedy wrote for the majority. There is much in his opinion to suggest that he wants the case to be understood on the specific facts of this case, and not to create a broader statement. However, the narrowness of a ruling is determined not by what a given justice wants, but what subsequent courts do with the ruling when applying it, so only time will tell if this is actually a narrow ruling. It is also important to indicate that elements of Kennedy’s opinion potentially have sweeping implications that go far beyond the present case. Again, the full implications cannot be known at this point.

In his opinion, Kennedy seeks to limit the analysis to one particular moment in the entire process: the review by the Colorado Civil Rights Commission. Kennedy acknowledges that CADA is consistent with the U.S. Constitution, and that discrimination against people based on their sexual orientation is illegal under Colorado law. Kennedy moves from here to deciding for Phillips, however, by arguing that it was the Commission, and not CADA, that creates the free exercise violation. During the hearings for Phillips’s case, several commissioners remarked that religious beliefs cannot be a legitimate ground for justifying discrimination.

What particularly bothers Kennedy is the way some of the commissioners talk about religion. Kennedy quotes the following example from the Commission’s hearing:

“I would also like to reiterate what we said in the hearing or the last meeting. 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.”

For Kennedy, the comparisons to slavery and the Holocaust, and the use of “despicable’ and “rhetoric” in describing sincerely held religious beliefs, is simply too much. This characterization is the core of Kennedy’s ruling, and what allows the Court to decide the case without deciding the broader legal issue. For Kennedy, this indicates that the Commission did not act with neutrality towards religion, and thus the Commission was in the wrong with how it treated Phillips and his beliefs.

For the Court, the Colorado Civil Rights Commission acted with animus toward Phillips on the basis of his religion. Thus, the procedures were discriminatory, and the Commission violated Phillips’s free exercise rights. The Court, thus, does not address: (1) the free speech issue; (2) whether Phillips’s (or anyone’s) religious beliefs could ever legally justify discrimination; (3) whether Craig and Mullins had their rights violated when they faced discrimination; or (4) how are judges and other legal actors supposed to decide when, or if, religious beliefs can be used as the basis of discrimination against others, or when the rights of others trump religious rights based on sincerely held religious beliefs.

In essence, the Court found a legal out in blaming the Commission for not treating Phillips with “neutrality,” as prior case law suggests it should have. Focusing on this allowed the Court to end this case without having to actually decide the case. What this means is that there is no new clarity on these legal issues, and that the Court will be asked to hear similar cases in the future. Rather than a blockbuster, this case turned out to be a flop.

Daniel Tagliarina is Pre-Law Advisor and Assistant Professor of Government and Politics at Utica College.