Kennedy cuts a narrow slice of cake

OCTOBER 2017 TERM

Just in time for June nuptials, the U.S. Supreme Court on Monday issued the long-awaited decision in Masterpiece Cakeshop Ltd v. Colorado Civil Rights Commission, 2018 DJDAR 5291. Justice Anthony Kennedy authored the 7-2 opinion, which reversed the finding of discrimination against baker Jack Phillips made by the Colorado Civil Rights Commission and the Colorado Court of Appeals.

In a fractured and narrowly tailored 58-page decision, the court decided the case not on freedom of speech-what-is-art grounds, but on the free exercise clause of the First Amendment.

Kennedy, who during oral argument lambasted the Colorado solicitor general for the commission's insensitivity to Phillips' religious views, used the opinion to further chastise government officials who show "hostility" to those, like Phillips, who possess sincerely held religious beliefs. Kennedy stated that although it was "a delicate question," an owner of a business which serves the public might have a free exercise claim "limited by generally applicable laws."

In this case, explained Kennedy, the Colorado commission acted like the municipal authority in the Florida animal slaughtering case, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-42 (1993), which implemented a zoning law to deprive a religious minority of the use of animals, while permitting other religions and hunters, in the same township, to make free "use" of dead animal parts. The commission, "went so far as to compare [the baker's] invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust." As no other commissioners disavowed those comments, and no Colorado court reviewing the commission's findings "expressed any concern with their content" and since the comments were not disavowed in the briefs, the court concluded that there was doubt, of such a degree, "on the fairness and impartiality of the Commission's adjudication."

Additionally, since Colorado permitted other bakers, on at least three occasions, "to discriminate" and those refusals were not violative of Colorado's antidiscrimination statute where those bakers were asked to make cakes adorned with "derogatory" anti-gay messages, a different standard was applied to Phillips. The commission ruled against Phillips, in part, on the theory that "any message" on the cake would "be attributab[le] to the customer and not the baker." This behavior by Colorado "violated the State's duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint." The free exercise clause obliged the commission to be above even "subtle departures from neutrality" on matters of religion.

Kennedy was empathetic to Phillips' "dilemma" of conscience. In 2012, when Phillips, declined to make the Colorado couple's cake, gay marriage was illegal in Colorado and Colorado permitted "other storekeepers some latitude to decline to create specific messages."

Kennedy, who authored the landmark gay rights decisions of Windsor and Obergefell (upholding right of gays to marry), did not "back-track" on the legal right of gays to marry. Rather, on the first page of the decision he teed up the dueling "difficult questions" about both reconciling a government's aim "to protect the rights and dignity" of gay people who face discrimination in access to "goods and services" and permitting all people "to exercise fundamental freedoms" of the First and Fourteenth Amendments. Kennedy did not reach the question of what to do when those rights conflict and left the question for another day and another "future controversy" on "facts similar to these." The behavior of the Colorado authorities did not exhibit the necessary "religious neutrality," and that alone violated the baker's free exercise of religion.

The narrowness of the opinion explains how Justices Stephen Breyer and Elena Kagan signed on to become the seven-member majority. At oral argument, it was Breyer who cautioned the parties about his concern with crafting a ruling which would not "undermine every civil rights law since [the beginning of time]," "including everybody who has been discriminated against in very basic things of life, food, design of furniture, home and buildings."

No such rule was suggested by the Masterpiece opinion. Invalidated as of Monday and applied to Phillips alone is the Colorado commission's underlying order which required him to do three things: (i) to sell the same wares to all-comers (straight and gay); (ii) to educate the bakery staff about Colorado's antidiscrimination law and (iii) to keep track of, and report to the commission for two years, the number of customers who were refused service. And no wedding service provider other than a member of the clergy was specifically exempted from "neutrally applied and generally applicable" antidiscrimination laws. For "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."

Kagan, joined by Breyer, wrote a concurrence in which she, with particularity, addressed the narrow procedural underpinnings of the ruling. She focused on the failure of the Colorado commission to be a neutral arbiter and failing to satisfy the requirement of "state actors" to give "neutral and respectful consideration" to all citizens. The behavior of the state "in this case" was "disquieting," wrote Kagan, and the state could have better explained why it treated other bakers declining to make cakes differently from Phillips. Different outcomes as to the group of bakers "could" have been justified but for a proceeding "infected with religious hostility or bias."

Justices Clarence Thomas and Neil Gorsuch each wrote concurring opinions. Thomas thought the court should have addressed the baker's free speech claim and that wedding cakes communicate a celebration of a marriage and that Phillips conduct was expressive. Thomas noted that he had warned in Obergefell that that decision would result in this day, where "religious liberty" would need to be vindicated. Gorsuch joined with part of Thomas' 14-page opinion, and as our newest justice is want, Gorsuch took another 12 pages (in which Samuel Alito joined) to point out "the wrinkle" and limitations of the majority's characterization of the baker's plight and the commission's failure. Gorsuch wrote "a full view of the facts helps point the way to the problem" and he gave examples "about the distinction between intended and knowingly accepted effects ... familiar in life and law" to explain how the commission had not acted neutrally as to all the baker cases it decided. "Nothing in the Commission's opinions suggests any neutral principle to reconcile [its] holdings" and that "religious beliefs are entitled to no less respectful treatment than [a] baker's secular beliefs."

And while Gorsuch characterized Phillips as someone who has "conclusively proven a First Amendment violation" in which for "almost six years" the baker faced "unlawful civil charges," the dissenters, Justices Ruth Bader Ginsburg joined by Justice Sonia Sotomayor, did not see a lack of neutrality in the commission's decision in distinguishing Phillips' refusal with the refusal of other Colorado bakers to bake cakes for the man who ultimately filed an amici brief in the case by the name of "William Jack." (News accounts identify Mr. Jack as a self-avowed Christian, mysteriously financed, who visited multiple Colorado bakeries after the Masterpiece Cake initial administrative ruling, insisting that the bakeries make him bible cakes with the words like "God hates sin" and "Homosexuality is detestable." Jack then filed actions against the bakeries with the commission for varying reactions to the requests which included declinations and that of one baker who agreed to make the cake and give him an icing bag to decorate the cakes himself.)

Ginsburg's dissent intimates that the majority was set up and being played by forces in the religious right. Specifically, Ginsburg notes that three months after the Colorado administrative law judge issued a ruling (one of the multiple levels of review by the Colorado authorities on the matter's way up to the Colorado Court of Appeals) William Jack made his visits to other Colorado bakeries. Ginsburg said that the commission found no probable cause in support of William Jack's claim of unequal treatment. As the commission noted, the Masterpiece gay couple requested no message on their cake and asked for a cake that was indistinguishable from any other cake that Phillips would have sold to others. Ginsburg argued that the cake-making requests "with which the Court aligns are hardly comparable" as all the bakers approached by Jack would have sold him any baked goods they "would have sold anyone else." She explained that Phillips' refusal of the gay couple was "for no reason other than their sexual orientation [denying them] a cake of the kind he regularly sold to others." Ginsburg stressed that the majority's emphasis on other baked goods Phillips sold to gay people was not relevant to the issue presented. Specifically, "that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple." And as for the sentiments expressed by "one or two commissioners," whatever one might think of the statements (in their "historical context" as providing examples of discrimination), such comments should "not be taken to overcome Phillips refusal" to sell the cake to the couple. Unlike the majority, Ginsburg referenced the "several layers of independent decision-making" referring to the review by the administrative law judge after an extensive hearing, the review by the Colorado commission, and the judicial review provided by the Colorado courts, including the Court of Appeals that reviewed the case de novo. Ginsburg noted that "the Commission was but one" of these multiples avenues of review.

She concluded her dissent with an expression of puzzlement as to the majority's reliance on only one case as precedent, Lukumi. In Lukumi, a Florida city council made a law specifically to deprive a group of religious rights, and as Ginsburg noted, this case is "far removed" from those facts.

The decision in Masterpiece Cake resolves little except for the circumstances of the Colorado baker, who may now take the "next step" in a successful challenge to a state's antidiscrimination laws. In our own Kern County cake case (in which a California superior court judge this year exempted, on First Amendment grounds, a religiously minded baker's refusal to make a wedding reception cake for a same-sex couple), the baker is now seeking from the state of California over $400,000 in legal fees as a "prevailing party" for having to defend against an administrative action. See Department of Fair Employment and Housing v. Cathy's Creation, Inc. dba Tastries, BCV-17-102855.

But the Colorado baker, Jack Phillips' lawyers, Alliance Defending Freedom will be ready for the next-as-yet-unidentified-case to which Justice Kennedy refers. Alliance well knows that there is no vetting process for one who claims to possess sincerely-held religious beliefs. The group's fundraising material, which has in the past warned that the group will take action against those with an "anti-Christian agenda" or who advocate "homosexual behavior," advertises that Alliance will take on cases in which believers have not been "able to freely live out their faith" in any aspect of society. Alliance provides free legal assistance to believers and, has media coaching available to get its "champions of liberty" ready for their close-ups.

One of Alliance's representatives in 2014 likened Alliance's support of those who refuse to serve gays to that of Rosa Parks refusing to take the back seat on the bus. Now that Masterpiece is decided, we will wait and see how long it takes for the next case to materialize, and whether Alliance's "vision" of our nation will become a reality.