June 4, 2018 at 10:35 am EDT | by Chris Johnson
Supreme Court sidesteps major ruling in Masterpiece Cakeshop case

The Supreme Court issued a narrow decision for an anti-gay baker in the Masterpiece Cakeshop case. (Washington Blade file photo by Michael Key)

The U.S. Supreme Court sidestepped a major decision Monday in the Masterpiece Cakeshop case, issuing a narrow decision based on the facts of the lawsuit in favor of a Colorado baker sued for refusing to make a wedding cake for a same-sex couple.

In the 7-2 decision written by U.S. Associate Justice Anthony Kennedy, the Supreme Court vacated 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 concluded his ruling by making clear it provides no precedent for cases in which 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 wrote.

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 the court might issue a decision punting the case and remanding it for reconsideration without hostility toward religion.

In the decision, Kennedy writes those words from the commissioner demonstrates hostility toward Phillips’ religion both by describing 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 against discrimination on the basis of religion as well as sexual orientation,” Kennedy wrote.

But the decision keeps in place Colorado’s Anti-Discrimination Act. Kennedy writes the ability to refuse wedding-related services to same-sex couples under the First Amendment should be restricted to clergy and laws against anti-LGBT discrimination are valid.

“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,” Kennedy writes.

Kennedy cites the 1968 decision in Newman v. Piggy Park Enterprises in which a business cited a First Amendment right to refuse to serve black customers with white customers despite then-recent passage of the Civil Rights Act of 1964. In that case, the Supreme Court found that laws of general applicability are valid businesses are subject to penalty under them despite any objections based on freedom of religion.

The timing of the ruling on Monday was a surprise to legal observers, many of whom predicted the Supreme Court wouldn’t be hand it down until the final day of its 2017-2018 term at the end of June.

The decision will means the Colorado Civil Rights Commission is vacated, but there’s no reason to think Phillips wouldn’t face additional penalties if he refuses service to same-sex couples down the road.

James Esseks, director of the American Civil Liberties Union’s LGBT and HIV project, said Monday in a conference call with reporters Phillips doesn’t get a free pass to discriminate in the aftermath of the ruling.

“If a new same-sex couple walks into that business, I see no reason in this opinion that Masterpiece Cakeshop is free to turn them away because they asked for that right, and they didn’t get that right,” Esseks said. “The only reason that they might win is if Colorado’s civil rights commission once again engaged in the kinds of the comments the court viewed as anti-religion. Since I think that’s very unlikely to happen, I don’t think Masterpiece Cakeshop can’t think it is free to discriminate in the state of Colorado because I believe it is not.”

The ruling 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, has reached its finish line.

In a joint statement, Craig and Mullins expressed disappointment the with the ruling, but said they’d continue the fight.

“Today’s decision means our fight against discrimination and unfair treatment will continue,” Craig and Mullins said. “We have always believed that in America, you should not be turned away from a business open to the public because of who you are. We brought this case because no one should have to face the shame, embarrassment and humiliation of being told ‘we don’t serve your kind here’ that we faced, and we will continue fighting until no one does.”

After the couple sued six years ago, 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. The ACLU, which represented the couple, insisted non-discrimination principles were upheld and Alliance Defending Freedom, which represented Phillips, called the decision a victory for “religious freedom.”

Louise Melling, deputy legal director of the ACLU, said in a statement the Supreme Court essentially punted without making a sweeping 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.”

U.S. Solicitor General Noel Francisco had argued before the Supreme Court in favor of Phillips on behalf of the Trump administration, asserting baking a custom-made wedding cake amounts to artistic expression, and therefore is free speech protected under the First Amendment. Neither the White House, nor the U.S. Justice Department, responded Monday to the Washington Blade’s request to comment on the court’s decision in the case.

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 to the ruling was U.S. Associate Justice Ruth Bader Ginsburg, who was joined by U.S. Associate Justice Sonia Sotamayor.

Kagan, who has previously ruled in support of gay rights, emphasized in a concurring opinion the decision “limits its analysis to the reasoning of the state agencies” and the commission reached the correct conclusion under the Colorado Anti-Discrimination Act despite the anti-religion comments.

The Obama-appointed justice compared the Masterpiece Cakeshop to a separate case in which another individual, William Jack, sought cakes disapproving of same-sex marriage in Colorado and was denied service, but received a different outcome from the state commission.

“In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else — just as CADA requires,” Kagan writes. “By contrast, the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple. In refusing that request, Phillips contravened CADA’s demand that customers receive ‘the full and equal enjoyment’ of public accommodations irrespective of their sexual orientation.”

Gorsuch disagrees in a separate concurring decision joined by Alito, saying the case filed by Jack is similar and the commission should have given Masterpiece Cakeshop the same outcome.

“Nothing in the Commission’s opinions suggests any neutral principle to reconcile these holdings,” Gorsuch writes. “If Mr. Phillips’s objection is ‘inextricably tied’ to a protected class, then the bakers’ objection in Mr. Jack’s case must be ‘inextricably tied’ to one as well. For just as cakes celebrating same-sex weddings are (usually) requested by persons of a particular sexual orientation, so too are cakes expressing religious opposition to same-sex weddings (usually) requested by persons of particular religious faiths.”

Gorsuch writes in the aftermath of the Supreme Court ruling the commission should re-examine the case and “must afford him the same result it afforded the bakers in Mr. Jack’s case.”

Another concurrence written by Thomas and joined by Gorsuch concludes Phillips should have prevailed before the commission simply on the basis of his freedom of speech claims.

“It reasoned that an outside observer would think that Phillips was merely complying with Colorado’s public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect,” Thomas writes. “This reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak. It should not pass without comment.”

In her dissent, Ginsburg wrote 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 at a later time. That decision could 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 right 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.

Jocelyn Samuels, executive director of the Williams Institute at the University of California, Los Angeles, nonetheless said the reaffirmation of non-discrimination principles in the Masterpiece Cakeshop decision bodes well for any future consideration of the “religious freedom” issue.

“The scope of the opinion and the endorsement of equal dignity for the LGBT community, the recognition of stigma that refusals of service impose on LGBT people and the citation about Piggie Park…I think that that is a statement that reflects black-letter law, but that we now have broad-support endorsement of from a significant majority of the court’s justices,” Samuels said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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