CDI Corner
CDI Corner
SCOTUS DELIVERS OPINION IN FAVOR OF BAKER BUT NOT FOR ANY OF THE OBVIOUS REASONS
LISA KOHRING
This past June , Justice Kennedy delivered SCOTUS ’ 7-2 opinion in Masterpiece Cakeshop v . Colorado Civil Rights Com ’ s ., a case that many had hoped would create protections for members of the LGBTQ community under established civil rights laws . Six years after Phillips refused to create a wedding cake for a same-sex couple , SCOTUS was poised to decide whether a business owner could refuse services to same- sex couples based on religious grounds , an issue that many people described as one of the most consequential civil rights issues of the recent decade . Unfortunately , the Court ’ s decision turned out to be rather anticlimactic for those on both sides of the issue . SCOTUS invalidated the Colorado Civil Rights Commission ’ s ruling in favor of the gay couple and found in favor of the baker , Jack Phillips , but not for any of the obvious reasons .
In 2012 , Jack Phillips , the owner and baker at Masterpiece Cakeshop , refused to make a custom wedding cake for a same-sex wedding . Relying on First Amendment rights , Phillips contended that his cake creations constitute a “ medium ” he uses to honor god through protected artistic expression . He said forcing him to make the cake would violate his right to free speech by compelling him to exercise his artistry to endorse a message antithetical to his religious beliefs . The couple argued that Phillips ’ refusal constituted sexual orientation discrimination in violation of the Colorado Anti-Discrimination Act (“ CADA ”), which prohibits sexual orientation discrimination in places of public accommodation . The members of the Colorado Civil Rights Commission agreed with the same-sex couple , determined Phillips had violated CADA by refusing goods and services to the couple that he provides to the public generally , and imposed remedial measures on Phillips and his bakery . During a public hearing , one of the Commission ’ s members criticized Phillips ’ religious based objection to samesex marriage by describing it as “ one of the most despicable pieces of rhetoric that
people can use to — to use their religion to hurt others .” The Court of Appeals affirmed the decision and the Colorado Supreme Court declined to hear the case .
SCOTUS punted on the primary questions and focused its decision on the Commission ’ s overt bias toward Phillips ’ religion and failure to enforce CADA in a “ fair and neutral ” manner . SCOTUS condemned the Commission ’ s treatment of the case as religious disparagement strewn with “ elements of a clear and impermissible hostility toward the sincere religious beliefs ” motivating Phillips ’ refusal to create the cake and held the decision was inconsistent with the State ’ s obligation of religious neutrality under the First Amendment ’ s Free Exercise Clause .
Besides opposing inappropriate remarks about religion , SCOTUS also took great issue with the Commission ’ s failure to apply certain theories and weigh factual evidence in the Phillips case consistently and uniformly with the way it handled similar issues and evidence before it in three similar cases . Each of the cases involved bakers who refused to create cakes based on their conscious based objections to displaying text or images disapproving same-sex marriage . In each case , the Commission ruled in favor of the bakers , but did not discuss whose message would be attributed to the cake , and determined no CADA violation occurred , in part , because each of the bakeries were willing to sell other items to the customers . In Phillips ’ case , the Commission ruled in favor of the couple by relying , in part , on the theory that the message on the cake belonged to the customer and the Commission determined CADA was violated . Phillips was willing to sell other baked goods to same-sex couples , but the Commission disregarded this point as irrelevant . Justice Kennedy characterized the decision to elevate one view of offensiveness above another , as official disapproval of Phillips ’ religious beliefs .
PBCBA BAR BULLETIN 10
In essence , the Court ’ s holding is innocuous to those on both sides of the issue because the impact of the decision is not a step forward nor a step backward for LGBTQ protections , and it does not expand nor restrict First Amendment rights or religious freedoms . Nonetheless , the time and attention the Justices invested in carefully crafting each of the concurring and dissenting opinions assures us all that the resurgence of this issue will meet a powerful debate before a deeply divided Court . The resurgence may occur sooner than you think . In August , just weeks after SCOTUS released its opinion , the Commission issued another decision finding Phillips in violation of CADA , this time because he refused to make a birthday cake celebrating the transition of a transgender attorney . For now , the power struggle between the freedom of speech and free exercise of religion arguments , on the one hand , and LGBTQ civil rights and exercise of state power arguments , on the other hand , remains intact and ripe for adjudication .
Lisa Kohring is a Senior Litigation Attorney at the Palm Beach County School District practicing labor and employment litigation and she can be reached at Lisa .
Kohring @ palmbeachschools . org
Closing Arguments Christian Searcy
If you missed the last YLS Sidebar Series , featuring Christian Searcy speaking on Closing Arguments , please note that we have a recording of the program . The audio is available in MP3 or CD format and includes written materials . To order a copy visit the Bar ’ s website : cle . palmbeachbar . org