There has been a significant amount of rhetoric, even hyperbole, about this decision. As is my custom, I decided to wait, listen to multiple people’s opinions, and <gasp> read the syllabus of decision for myself. What I often find is that when you weed through all the noise and look at what was actually written, you find the truth to be somewhere in the middle. This case is no different. While the decision, as far as it goes, is Constitutional, it seems Justice Kennedy has found a way to “split the baby” when it comes to his opinion.
The Background
Jack Phillips is the owner and operator of Masterpiece Cakeshop in Colorado. In 2012 a same-sex couple asked Mr. Phillips to create a custom wedding cake for their wedding. (At the time neither Colorado nor the United States recognized same-sex marriages.) Mr. Phillips refused to make a custom cake for their wedding because he had a religious objection to same-sex marriage, but offered to sell them anything else in his shop. (Phillips also refuses to bake cakes containing alcohol, cakes with racist or homophobic messages, cakes criticizing God, and cakes celebrating Halloween.)
The couple filed a charge with the Colorado Civil Rights Commission pursuant to the Colorado Anti-Discrimination Act, which prohibits discrimination based on sexual orientation in a “place of business engaged in any sales to the public”. The charge was eventually referred to an Administrative Law Judge who found in favor of the couple, rejecting Mr. Phillips’ claim that requiring him to create a custom cake against his will was a violation of both his free speech and free exercise rights protected under the First Amendment. That decision that was upheld by both the Colorado Civil Rights Commission and the Colorado Court of Appeals.
What SCOTUS Found
Once you sweep away the rhetoric, confirmation bias, and just plain wishful thinking, you find there are several interesting and important points made by Justice Kennedy in his opinion.
First, The court found that while laws and the Constitution can protect gay people in the access of their civil rights, objections to “gay marriage” are protected views and may be protected forms of expression. The Colorado law can protect gay persons from obtaining goods and services on the same terms as other members of the public. The court also found that the law must be applied in a manner neutral to religion. Yes, all people, including homosexuals, should have their civil rights protected, but so should those who object to same-sex marriage. Also, the law cannot discriminate against those who object on religious grounds.
Second, the Colorado Civil Rights Commission showed clear hostility to Mr. Phillips religious liberty claims. The record showed not only that during formal hearings some of the commissioners “endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” –Opinion Syllabus.
None of the commissioners objected to this position, neither was it disavowed in subsequent court filings. Also, while this case was pending, the Colorado Civil Rights Commission concluded that three other cases where a baker refused to create cakes that demeaned homosexuals and same-sex marriages acted lawfully. By treating Mr. Phillips’ claims differently because his disagreed with the commissioners’ point of view, they showed that it was impossible for him to get a fair and impartial hearing from them. Mr. Phillips deserved the same neutral and respectful consideration of his claims as the other bakers received.
Third, a state entity such as the Civil Rights Commission, cannot determine what is speech and what to protect.
“The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips’ willingness to do the same irrelevant.” –Opinion Syllabus
Fourth, the state has a duty not to enact laws and regulation based on hostility to a religion or religious viewpoint.
“The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. ” –Opinion Syllabus
The government does not get to decide what is a legitimate religious belief, nor can it impose laws or regulations that are hostile to them.
Overall, the court found that the commission was neither tolerant nor respectful of Mr. Phillips’ free exercise claims.
“But the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same.” –Opinion Syllabus
What SCOTUS did not Find
The court did not find that Mr. Phillips was within his rights to refuse to create a custom cake that expressed an opinion that he personally disagrees with.
“The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed.” –Opinion Syllabus
The court did not find that using ones creative talents is a form of expression protected by the free speech and free press clauses of the First Amendment. The court also did not find that a person cannot be compelled by the state to create an artistic work based on its creator’s religious beliefs.
While the court did reverse the decision of the Colorado Court of Appeals by a significant margin (7-2), it did so only on the narrowest of points: The hostility the commission showed to Mr. Phillips religious beliefs.
Other Opinions.
As with other cases, not all the justices agreed, even those that concur with the courts opinion.
Thomas & Gorsuch
Justices Thomas and Gorsuch, while agreeing with the court, felt the need to express that the court did not deal with the question of whether being compelled to create a custom wedding cake was a violation of Mr. Phillips’ free speech rights.
The Colorado Court of Appeals was wrong to conclude that Phillips’ conduct was not expressive because a reasonable observer would think he is merely complying with Colorado’s public-accommodations law. This argument would justify any law that compelled protected speech. And, this Court has never accepted it. — Thomas & Gorsuch Concurring Opinion
The Colorado Court of Appeals also erred by suggesting that Phillips could simply post a disclaimer, disassociating Masterpiece from any support for same-sex marriage. Again, this argument would justify any law compelling speech… Because the government cannot compel speech, it also cannot “require speakers to affirm in one breath that which they deny in the next.” — Thomas & Gorsuch Concurring Opinion
Because Phillips’ conduct (as described by the Colorado Court of Appeals) was expressive, Colorado’s public accommodations law cannot penalize it unless the law withstands strict scrutiny. — Thomas & Gorsuch Concurring Opinion
In short, what Mr. Phillips does is an expression and therefore protected by the First Amendment. Because of this, the Colorado Court of Appeals was required to use strict scrutiny (the highest level of judicial review), which it did not.
The Court of Appeals did not address whether Colorado’s law survives strict scrutiny, and I will not do so in the first instance. There is an obvious flaw, however, with one of the asserted justifications for Colorado’s law. According to the individual respondents, Colorado can compel Phillips’ speech to prevent him from “‘denigrat[ing] the dignity’” of same-sex couples, “‘assert[ing] [their] inferiority,’” and subjecting them to “‘humiliation, frustration, and embarrassment.’” …
These justifications are completely foreign to our free-speech jurisprudence. — Thomas & Gorsuch Concurring OpinionStates cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” — Thomas & Gorsuch Concurring Opinion
Justices Thomas and Gorsuch believe the court did not go far enough because it ignored the free speech aspect of the case. The First Amendment prevents governments from creating laws that punish speech because somebody finds it offensive, hurtful, or for any other reason. By not dealing with this claim, the court has left open the possibility of future First Amendment violations as long as the government entity is not obviously hostile to a religious point of view.
Ginsburg & Sotomayor
Dissenting from the courts’ opinion, Justices Ginsburg & Sotomayor do not believe the couple should have lost the case because, in their opinion, the Civil Rights Commission did not show hostility to Mr. Phillips religious beliefs. Justice Ginsburg noted that while the three cases the commission dismissed involved a specific request for language on the cake, but the request to Mr. Phillips did not. The justices’ opinion that Mr. Phillips’ issue was with the couples sexual orientation rather than participation in their wedding is belied by the fact that Mr. Phillips offered to sell them any baked good in the store; his only objection was to making a custom cake for their wedding. This misconception of the facts of the case, in my opinion, leads them to disregard the obvious difference between selling something regardless of the customer (which was offered), versus the expression of making custom creations. Based on their stated opinion, a seamstress who makes custom clothes and flags would be required to make KKK robes and Nazi flags since she would make similar items for others.
Justices Ginsburg and Sotomayor go on to explain that the difference in treatment of the other cases brought before the commission was not the government determining offensiveness, but “that Mr. Phillips declined to make the cake because he found it offensive while the other bakers obviously made it because the language requested was obviously offensive.” Rather than showing that the government was not determining whether something was offensive they were demonstrating how they, in their role as government officials, were determining what is offensive by making said decision themselves! Add to that the fact that neither justice seems to have any problem with government officials standing in judgment of others using blatantly derisive, even offensive, language to describe the motives of others. I do not see how they can see the comparison of one’s beliefs with two of the most racist and destructive ideologies in history as anything but discriminatory. Yet they do.
Conclusion
While the decision is good, such as it is, in my opinion the court missed an excellent opportunity to uphold both the First Amendment’s free exercise and free speech clauses. Instead, this narrow ruling simply shows government officials what they must do in order to trample the freedom of speech and religion in a way acceptable to the supreme Court of the United States.
While Mr. Phillips is now free from the specter of debilitating fines and court imposed penalties, this is by no means a complete victory for him. While the court has set him free from this legal morass, they have done nothing to restore to him the justice that was lost, the years of pain and suffering, and the business lost. Not to mention the wages of those Mr. Phillips had to let go due to declining business while under the thumb of what can only be called a kangaroo court. Those on the commission who harassed, slandered, defamed, and denigrated Mr. Phillips come away with absolutely no penalty for the crimes they committed against him. Even if Mr. Phillips were to sue the commission, it would be the taxpayers of Colorado who paid the penalty, not those who are at fault. I do not know if these commissioners are elected or appointed, but I hope the good people of Colorado make sure the commissioners are held to account for what they did.
