When Too Many Judicial Cooks Muddy the Broth…or Cake By Daniel Tagliarina
As explained in an earlier post, the ruling in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is largely an exercise in avoiding the primary constitutional rights questions in the case. This, in large part, comes from Justice Kennedy’s focus on a few comments made by some of the commissioners that served as one of the levels of review in the case. Although every level below the Supreme Court ruled in favor of Craig and Mullins, the two men who tried to obtain a cake to celebrate their wedding, the Court reversed these decisions because of perceived animus by the Commission, in violation of Phillips’s (the baker and owner of Masterpiece Cakeshop) rights protected by the Free Exercise Clause in the First Amendment.
The focus on having the government treat sincerely held religious beliefs with complete neutrality makes this a potentially minor case. This focus on neutrality, however, adds to the overall confusion as to what this case actually means, and if it settles anything. Kennedy, in part, fosters this confusion with how he describes the issues in the case. Kennedy acknowledges the central conflict very early in his opinion when he writes:
The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.
Here he presents the case as about competing rights claims, although he complicates this by making it about state power to protect some rights, and the Constitution’s ability to restrict state imposition on religious rights. Even as Kennedy makes it about competing rights claims, he also makes this a case about state power, complicating the core conflict. This framing device allows Kennedy to later write, “… the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.” By framing the rights conflict through the lens of state power, Kennedy allows himself to focus just on the Commission’s actions and statements, thus avoiding ruling on the broader rights conflicts.
This shift in focus Kennedy uses complicates the overall ruling. This complication is expounded when the additional opinions from other justices are factored in as well. Although the Court decided the case 7-2, this hides the level of disagreement. Chief Justice Roberts, and Justices Breyer, Alito, Kagan, and Gorsuch all join Kennedy’s opinion in full. Justice Thomas mostly agrees with Kennedy, concurring in part and concurring in the judgment. Justice Ginsburg, joined by Justice Sotomayor, dissents. Overall, four justices besides Kennedy write opinions in the case, three of which ostensibly agree with Kennedy. These other opinions highlight how little this case actually addresses, as well as sheds light on potential future conflicts the Court will be asked to address.
Justice Kagan, joined by Justice Breyer, files a brief concurring opinion. While agreeing with Kennedy’s majority opinion, Kagan wants to clarify an important point. For Kagan, she believes that the Commission absolutely failed to act with neutrality towards Phillips’s sincerely held religious beliefs, and in so doing, violated his free exercise rights. Kagan also believes that the Commission could have easily reached the same conclusion that it did while treating Phillips with neutrality. Kagan’ opinion argues, in effect, that had the Commission explained its decision without reference to Phillips’s religious beliefs, they could have protected Craig and Mullins without violating Phillips’s rights. Kagan says that Phillips violated the Colorado Anti-Discrimination Act (CADA) by not making a cake for a same-sex couple that he would have made for an opposite-sex couple. The problem was, as Kennedy explains in the majority opinion, the reasons the Commission uses. Thus, Kagan finds that Phillips’s rights were violated, while saying that Craig and Mullins also had their rights violated.
Coming at the case from a different perspective, Justice Gorsuch, joined by Justice Alito, also writes a concurring opinion. Gorsuch agrees the Commission failed to treat Phillips’s sincerely held religious beliefs with complete neutrality, and thus violated his rights. Unlike Kagan, however, Gorsuch does not believe that Phillips did anything wrong, suggesting that he did not violate CADA. Much of Gorsuch’s opinion is dedicated to taking issue with, and arguing against, Ginsburg’s dissent. Gorsuch argues at length why the Commission did not act with neutrality, and why the Commission’s actions and statements constitute unconstitutional religious discrimination. Craig and Mullins are largely absent from the discussion and consideration in Gorsuch’s opinion.
Justice Thomas, joined by Justice Gorsuch, concurs in part, and concurs in the judgment. This means that Thomas believes that the Court ultimately reached the right conclusion, but that he only agrees with part of the reasons the Court offered for reaching that conclusion. Thomas believes the Commission failed to act with neutrality, as do all of the justices in the majority. What Thomas disagrees with is Kennedy’s almost total refusal to discuss Phillips’s free speech claims. Kennedy does acknowledge there is a free speech component, but limits his analysis to the free exercise issue. Thomas wants to discuss both, and does so in his opinion. Thomas discusses baking as an expressive, artistic act. For Thomas, Phillips is an artist, baking is his art, and asking him to make a cake to celebrate a wedding he does not support would be the same as forcing him to produce art with a message he does not support. This is, for Thomas, a free speech violation, in addition to a free exercise violation. Thomas also goes so far as to suggest that free speech protections might be the way that free exercise rights are protected in the future as religion falls out of favor with the government and American culture.
Justice Ginsburg, joined by Justice Sotomayor, dissents. Unlike the other seven justices, Ginsburg does not believe that the Commission failed to treat Phillips’s sincerely held religious beliefs neutrally. Ginsburg argues that the Commission, which was one of four levels of review occurring below the Supreme Court, did not fail to act with neutrality, and that the majority was misreading and overemphasizing a small number of comments from a few of the commissioners while completely ignoring all of the other levels of review. Ginsburg believed that even if the Commission did not act with neutrality, no evidence was offered for how the other layers of review failed in this neutrality requirement. Moreover, Phillips violated CADA when he discriminated against Craig and Mullins specifically based on their sexual orientation in not making a cake for them that he would have made for a opposite-sex couple. As Ginsburg explains, “Change Craig and Mullins’ sexual orientation (or sex), and Phillips would have provided the cake.” For her, this is the key to seeing the denial as discriminatory.
This means that: seven justices believed the Commission failed to treat Phillips’s religious beliefs with neutrality, and thus engaged in discrimination; four justices believe that Phillips discriminated against Craig and Mullins in violation of CADA; and two justices believe this case must also be about free speech. What “neutrality” is, and what is required to count as treating sincerely held religious beliefs “neutrally” is still unclear. Kennedy’s refusal to directly address the core dispute, and the related topics, combined with the flurry of positions expressed in the additional opinions, makes it hard to say what this case means for the law in the long-term. What is clear is the Court is fractiously divided, and the larger issues will have to be answered another day, leaving confusion in its wake.
Daniel Tagliarina is Pre-Law Advisor and Assistant Professor of Government and Politics at Utica College.