Supreme Court Sides with Baker in Wedding Cake Case

Published in Central Voice (June 6, 2018)

On June 4, 2018, the United States Supreme Court upheld the right of a self-described cake artist in Colorado to refuse to sell a wedding cake to a same-sex couple. As framed by the Supreme Court, the issue in the case was, “whether applying Colorado’s public accommodations law to compel Phillips [the baker] to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.” In a 7-2 decision, the Supreme Court held that Phillips’ religious beliefs were sincerely held, that he was protected under the Constitution’s Free Exercise of Religion Clause, and that he therefore did not violate the state’s public accommodations law.  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Docket No. 16-111 (U.S. Supreme Court June 4, 2018).

The facts in the case were not disputed. David Mullins and Charlie Craig visited Masterpiece Cakeshop in a suburb of Denver, Colorado, in July 2012, to order a cake for their upcoming wedding reception.  Because same-sex marriage was not legal in Colorado at the time, Mullins and Craig planned to marry in Massachusetts and then celebrate with family and friends at a reception in Colorado. But bakery owner Jack Phillips informed them that the bakery wouldn’t sell wedding cakes to same-sex couples. He did offer to sell the couple baked goods for other purposes but cited his religious objections to same-sex marriage as the reason for refusing to sell the couple a wedding cake.  Thereafter, Mullins and Craig filed a complaint with the Colorado Civil Rights Commission (“Commission”), which ruled that Phillips had engaged in sexual orientation discrimination under the Colorado Anti-Discrimination Act.   The Commission’s decision was affirmed by the Colorado Court of Appeals; the Colorado Supreme Court denied review; and the case was then accepted for review by the U.S. Supreme Court.

Justice Kennedy’s majority opinion focuses on the conduct of the Commission, especially statements by some of the Commissioners, in finding that Phillips was not afforded a “neutral hearing that was tolerant of his religious beliefs.” For example, one Commissioner stated: “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.”

Justice Kennedy viewed this statement as “disparaging” to Phillips’ religion, particularly the references to slavery and the Holocaust. Said Kennedy, “This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.”

The majority opinion also notes three other cases involving bakers as evidence of the Commission’s “hostility” to Phillips’ religious beliefs. In those cases, three bakeries were found not to be in violation of the public accommodations law when they refused to bake two cakes with anti-gay messages and images.   The customer, William Jack, requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested on one side, ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, the one with the image of the two groomsmen covered by a red ‘X’, Jack requested these words: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’   Said the Court, “the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections.” In other words, the three bakers who refused to bake cakes with homophobic messages were asserting the same right Phillips was asserting by refusing to bake a wedding cake for a same-sex wedding reception. The Commission was therefore inconsistent – and demonstrated religious intolerance – in finding that Phillips violated the public accommodations law while the other bakers did not.

What Justice Kennedy and the majority seem to be saying is that a balancing test must be applied to determine which right prevails – the freedom to express one’s religion or the right to be free from discrimination.   In applying this balancing test to future cases, “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.” Such a test may be difficult to apply in practice, however, and gives little guidance to courts on how to resolve such disputes when one party’s sincere religious beliefs are respected. And when gay persons are denied goods and services because of their sexual orientation, how can such “indignities” ever be avoided? Kennedy’s opinion makes clear that these are questions left for another day.

Justice Ruth Bader Ginsburg’s dissenting opinion merits mention. In it, she discounts the majority’s reliance on the statements made by the Commissioners as evidence of bias against Philips’ religious views. She also notes her agreement with many of the statements made by the majority, including the general rule that religious and philosophical objections “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”  In addition, the majority recognizes, “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Under these principles – supported by all nine justices – Justice Ginsburg would have held in favor of Craig and Mullins. Justice Sotomayor joined Justice Ginsburg’s opinion.

While significant, the Masterpiece Cakeshop case is the first in what may be many more decisions that pit religious freedom against same-sex or sexual orientation discrimination. Indeed, there are several cases pending in the lower courts that present the same or similar legal issues as Masterpiece. What the Court did not decide was whether Phillips’ refusal to bake a wedding cake was a protected form of expression – freedom of speech – under the First Amendment. That important issue will continue to be litigated and may ultimately end up back before the U.S. Supreme Court. Until then, the Masterpiece precedent will likely – and unfortunately – be used to justify discriminatory treatment of gays and lesbians in the provision of goods and services offered to the public.

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Laurie T. Baulig
Laurie T. Baulig

Attorney at Law

With a career spanning three decades, Laurie Baulig has been a litigator for the federal government, a private practitioner, in-house counsel for two business trade associations, and a teacher at a liberal arts college.  She founded Baulig Law with the idea that, at its best, law is a service profession that should be transparent, accessible and affordable.  The firm’s focus on employment law also reflects her philosophy that both businesses and their employees benefit when the workplace is free from discrimination, unfair wage practices, and unsafe or unhealthy conditions.

Laurie began her career as an antitrust litigator for the Federal Trade Commission in Washington, D.C.  She later shifted her focus to employment law as in-house counsel for the American Trucking Associations, one of the largest business trade groups in the nation’s capital.   While at ATA, she travelled across the country explaining the requirements of new laws passed by Congress – such as the Americans with Disabilities Act, Civil Rights Act of 1991, and Family and Medical Leave Act – and regulatory proposals that would have an impact on the trucking industry.   This experience not only confirmed her passion for employment law, but also awakened her interest in teaching.   So she left D.C. for Lancaster, PA in 2008 to serve as adjunct assistant professor at Franklin & Marshall College.  From 2008-13, she taught Human Resources Management, Gender and the Law, and other courses affecting legal rights and responsibilities in the workplace.

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