This blog entry has a long title because the Supreme Court’s ruling in Masterpiece Cakeshop, Ltd., v. Colo. Civil Rights Comm’n, 2018 U.S. LEXIS 3386, 2018 WL 2465172 (U.S. 2018) is complicated and cannot be summarized quickly. While the baker won the case (the Supreme Court reversed the state court order to him to pay civil rights damages to the plaintiff couple for refusing to sell them a “wedding cake”), he won it on such narrow grounds that the decision is likely to wind up supporting the power to states to enforce civil rights law without regard to the religious objections of business owners.
The Supreme Court ruled in favor of the baker on narrow grounds in a 7-2 decision with four judges concurring. The two dissenting judges were Ginsburg and Sotomayor. Three concurring opinions were written by Kagan (joined by Breyer) and Gorsuch (joined by Alito) and Thomas (joined by Gorsuch).
The majority affirms the power of states to pass and to pass and to enforce public accommodation laws over the religious objections of store owners. While the store owner had focused on a free speech claim rather than a free exercise of religion claim, the majority relied on an application of the free exercise clause rather than the free speech clause to adjudicated the case. (Gorsuch and Thomas would have accepted the baker’s free speech claim.)
To understand the opinion, it will help to look at specific statements the Court makes about the rights of the parites. The majority opinion states quite clearly that:
“The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws.”
The majority opinion also stated:
“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights.”
Further, in the majority opinion:
“[W]hile … religious and philosophical objections are protected, it is a general rule that such 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. See Newman v. Piggie Park Enterprises, Inc.,390 U.S. 400, 402, n. 5, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968)(per curiam).”
And finally, in the majority opinion:
“When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet 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. [¶] It is unexceptional that 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. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court’s precedents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law.”
“It is unexceptional that 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.”
All of these quotations say the same thing. States are empowered to pass anti-discrimination laws that apply to public accommodations (and those laws can prohibit sexual orientation discrimination as well as race, sex, disability, religion, and other forms of discrimination) and those laws apply to all businesses even if those businesses have religious objections to complying with those laws. The Court takes as a given, as a background assumption based on precedent, that public accommodation owners cannot avoid complying with antidiscrimination laws because of their religious beliefs. It is of crucial importance that the Supreme Court cites Newman v. Piggie Park Enterprises, Inc.,390 U.S. 400, 402, n. 5, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968)(per curiam), a case that applied the 1964 public accommodations law to a restaurant owner who had religious objections to having black and white people eating together. The Supreme Court in Newman v. Piggie Park rejected the restaurant owner’s argument that his free exercise of religion rights and “contravened the will of God” justified exemption from the statute by stating that this “is not even a borderline case,” and that the claims of the owner (including his First Amendment claims) were “patently frivolous.” Id.at 403 n.5. The citation of this 1968 case affirms that religious belief cannot be a reason for a constitutionally based exemption from an antidiscrimination law and that this same truth applies to cases of discrimination based on sexual orientation.
All this means that the case contains language that is quite protective of the rights of LGBTQ persons in the 22 jurisdictions (21 states plus D.C.) that actually prohibit discrimination on the basis of sexual orientation in public accommodations.
Because of that language, several days after the Supreme Court’s decision in Masterpiece Cakeshop,the Arizona Court of Appeals held that a store that creates wedding invitations and other custom artwork cannot refuse to comply with a municipal antidiscrimination ordinance and deny such services to same-sex couples on the ground that same-sex marriage violates the religious beliefs of the owners. Brush & Nib Studio, LC v. City of Phoenix, 2018 WL 2728317, (Ariz. Ct. App. 2018). The Arizona Court rejected both the store owner’s religious freedom claim and its freedom of speech claim.
The Arizona Court of Appeals rejected the store’s free speech claim because the main purpose of the statute was to prevent discrimination and any effects on speech are merely incidental to that core purpose. The public accommodation law “regulates conduct, not speech.” Citing the Supreme Court’s ruling in Masterpiece Cakeshop, the court explained:
“[T]he conduct at issue is not the creation of words or images but the conduct of selling or refusing to sell merchandise—either pre-fabricated or designed to order—equally to same-sex and opposite-sex couples. This conduct, even though it may incidentally impact speech, is not speech. Further, allowing a vendor who provides goods and services for marriages and weddings to refuse similar services for gay persons would result 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.” Masterpiece Cakeshop, Ltd., slip op. at 10, ––– S.Ct. at ––––.”
The court further explained that the act of creating design-to-order wedding invitations is not “inherently expressive” because the “it is unlikely that a general observer would attribute a company's product or offer of services, in compliance with the law, as indicative of the company's speech or personal beliefs.” Moreover, “Take for instance an invitation to the marriage of Pat and Pat (whether created for Patrick and Patrick, or Patrick and Patricia), or Alex and Alex (whether created for Alexander and Alexander, or Alexander and Alexa). This invitation would not differ in creative expression.”
The court noted that the “law has long recognized a state’s authority to ‘create rights of public access on behalf of its citizens.… It follows that a state may prohibit businesses from posting discriminatory signs.” However, “Although Appellants are prohibited from posting discriminatory statements about their intent to refuse services for same-sex weddings, they may post a statement endorsing their belief that marriage is between a man and a woman and may post a disclaimer explaining that, notwithstanding that belief, Section 18–4(B) requires them to provide goods and services to everyone regardless of sexual orientation. Or they may post a disclaimer that the act of selling their goods and services to same-sex couples does not constitute an endorsement of their customers' exercise of their constitutional right to marry or any other activities.”
The Arizona Court of Appeals also refused to find the city antidiscrimination law preempted by a state statute that protects an individual’s exercise of religion from undue governmental interference. Ariz. Rev. Stat. §41-1493.01. The court found no substantial burden on the free exercise of religion because (1) the store could post signs of the type just mentioned; and (2) would not be penalized for refusing to create wedding invitations for same-sex couples as long as they refrain from doing so for opposite sex couples. The statute “merely requires that, by operating a place of public accommodation, [the store] provide equal goods and services to customers regardless of sexual orientation.” And even if the public accommodations law imposed a substantial burden on the free exercise of religion, that burden is constitutional because of the state’s “compelling interest in eradicating discrimination.”
I have discussed the Brush & Nib case at length because it seems to me to be a correct application of the broad statements in Masterpiece Cakeshop in favor of denying religious exemptions to public accommodation laws when they prohibit sexual orientation discrimination.
Why then did the baker lose in Masterpiece Cakeshop? There appear to be three reasons with the first being by far those most important.
The first reason the baker won is because two members of the Colorado Civil Rights Commission made public statements at the hearing that the Supreme Court majority viewed as hostile to religion. Ginsburg and Sotomayor did not view the statements as hostile to religion, and even if they were, they objected to attributing those views to the majority on the Commission or to the appellate judges who affirmed the decision of the Commission.
One Commissioner said this:
“I would also like to reiterate what we said in the hearing or the last meeting. 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.”
The Court majority (including concurring Justices Kagan and Breyer) viewed these words as hostile to religion. Kennedy’s opinion stated that these words infected other statement’s by the commissioners criticizing bringing religious beliefs into public life.” Because this hostility to religion by public officials empowered to enforce the public accommodations law lacked the requisite neutrality among religious practice and belief under the establishment clause, the application of the public accommodations law violates the baker’s religious exercise rights under the First Amendment.
This ruling means that civil rights commissions (and judges enforcing civil rights laws) have a duty to justify their decisions in ways that do not express hostility to the religious beliefs of business owners who object to complying with antidiscrimination laws.
Second, the Court noted that the Colorado Civil Rights Commission had found no violation of the state statute when several bakers refused to make cakes with messages that a customer wanted on them protesting same-sex marriage when the bakers viewed those messages as offensive, derogatory, and demeaning to gay persons. The Court viewed this solicitude for bakers who did not want to make cakes with messages critical of homosexuality and same-sex marriage (the “Jack” cases) to be inconsistent with the lack of solicitude for the Christian baker in Masterpiece Cakeshop. If the state statute authorizes bakers to refuse to write messages for a Christian customer because the store owner objects to the message but forces bakers to sell wedding cakes to same sex couples, the state is engaging in inconsistent treatment that sometimes protects the sensibilities of the baker and sometimes does not. That inconsistency, the Court ruled, meant that the state was not acting neutrally as between different religious beliefs or as between religious and nonreligious beliefs.
Justices Kagan and Breyer disagreed with this part of the majority decision and argued that the cases were easily distinguishable. While they cannot be distinguished on the basis of whether government officials find the messages conveyed by the cakes offensive, they can be distinguished by the presence or absence of discrimination.
“The three bakers in the Jack cases did not violate that law. Jack requested them to make a cake (one denigrating gay people and same-sex marriage) that they would not have made for any customer. 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. 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. Ibid.The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious belief.”
Third, at the time the baker refused to make the cake, Colorado did not recognize same-sex marriage and the Supreme Court had not yet held that the couple had a constitutional right to marry. The Court suggests that it might be unfair to subject the baker to the state antidiscrimination law when the status of same-sex marriage was unsettled and his own state both prohibited sexual orientation discrimination and same-sex marriages.
Justices Ginsburg and Sotomayor dissented because they agreed with Kagan and Breyer that the Jack cases were distinguishable from the Masterpiece Cakeshop case and because they did not view the remarks of one or two commissioners to be sufficient to find the application of the public accommodations law to be tainted by bias. If it is the case that bakers can be required to sell wedding cakes to same-sex couples, then the baker in Masterpiece Cakeshop violated the law by refusing to do that and there was no reason not to affirm the lower court’s affirmation of the finding of a violation of the state civil rights law.
Justice Thomas concurred (along with Gorsuch) on the ground that the creation of a wedding cake is inherently expressive and that laws that require businesses to make custom artwork that violates the artist’s belief is unconstitutional compelled speech. They would have accepted Phillips’s argument that a custom wedding cake is inherently expressive and that making one for a same-sex couple expresses support for the wedding and the baker cannot be forced to do that. It is likely they would disagree with the Arizona Court of Appeals ruling in Brush & Nib described above.
Justice Gorsuch concurred (along with Alito) to express his disagreement with Kagan and Breyer on whether the Jack cases could be distinguished from the Masterpiece Cakeshop case. Both cases, in his view, were ones where bakers were asking for exemptions from a public accommodation law because they were being asked to express sentiments they disagreed with or found offensive.
As a coda to this explanation of what Masterpiece Cakeshop held, I note the news that a store in Tennessee placed a “no gays allowed” sign in the window after the Masterpiece Cakeshop ruling was announced. This seems to be an incorrect reaction to the case. The owner of the hardware store in Tennessee viewed the Masterpiece Cakeshop case as a victory for store owners rather than a victory for LGBTQ persons. As I have explained, Masterpiece Cakeshopreaffirms the power of states to pass laws prohibiting sexual orientation discrimination and does not give owners of stores the right to relief from those laws just because of the owner’s religious beliefs.
Of course, given the focus of the majority opinion on what it viewed as hostility to religion, all the statements about the power of states to regulate public accommodations and to enforce those laws over the religious objections of store owners could be viewed as mere dicta, not necessary to the opinion. That would be a way to read the case as being extremely narrowly tailored and leaving open all those questions.
My own view is that the statements were so categorical and so based on precedent that we have a seven member majority asserting them as established law. While changes on the Court could make a big difference (say if Ginsburg and Kennedy were replaced by Trump appointees), the wording in the opinion is sufficiently strong that I think the case stands for the proposition that religion does not justify an exemption from civil rights law.
The other oddity about the Tennessee case is that Tennessee does NOT prohibit sexual orientation discrimination. So unless sexual orientation discrimination is treated as a form of sex discrimination (as it has been in a few other cases), there is no duty not to discriminate on the basis of sexual orientation in Tennessee. Thus the sign does not prohibit illegal conduct. The Masterpiece Cakeshop case involved a state that does prohibit sexual orientation discrimination. Unless the Tennessee Supreme Court interprets the state statute to prohibit sexual orientation discrimination, or the Tennessee legislature adds “sexual orientation” to it public accommodations law, and unless a court rules that the common law is unconstitutional unless it affords equal access to public accommodations, then store owners in Tennessee remain perfectly free to discriminate on the basis of sexual orientation. They have no need for a religious exemption because they have no duty in the first place.
What I think the Masterpiece Cakeshop case leaves open is the dispute between Gorsuch and Kagan. Do bakers have to choose between not writing anything on cakes or writing whatever the customer wants or may bakers refuse to write certain words but not others and if the latter, what is the dividing line between which refusals would violate the religious rights of customers and/or shop owners?