July/August 2018 Church & State Magazine | Cover Story

A case from Colorado centering on a bakery whose owner cited his conservative religious beliefs in refusing to make wedding cakes for same-sex couples was one of the most closely watched of the U.S. Supreme Court’s recently concluded term.

For months, court watchers, legal analysts, journalists and others speculated over what might happen when Masterpiece Cakeshop v. Colorado Civil Rights Commission was handed down. Would the high court use the case as a vehicle to establish a broad right to discriminate on the basis of religion, or would it turn away the bakery entirely?

If observers were expecting fireworks, they were disappointed. The decision, released June 4, was exceedingly narrow and limited to the specific facts of the case. While technically a win for Jack Phillips, the owner of the bakery, the 7-2 ruling set no national precedent. If anything, the decision made it clear that discrimination claims based on religion will face tough sledding before the court.

In a nutshell, the court ruled that the Colorado Civil Rights Commission had violated Phillips’ rights because it had acted with hostility toward religion when it decided the case. The commission, the court majority said, had exhibited bias against Phillips and failed to treat his religious views in a neutral manner, as is required by the Constitution.

But the court’s opinion, written by Justice Anthony M. Kennedy, also made it clear that no sweeping precedent had been established.

“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,” wrote Kennedy.

Kennedy also noted, “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.”

Kennedy’s language indicates empathy for couples like Charlie Craig and David Mullins, who brought the lawsuit after being turned away by Masterpiece Cakeshop in 2012. And it’s a sign that, had the Colorado Civil Rights Commission not exhibited religious bias toward the bakery, the case might have turned out in the couple’s favor.

Charlie Craig and David Mullins

(Photo: Charlie Craig, left, and David Mullins the couple turned away by Masterpiece Cakeshop sit outside the U.S. Supreme Court. Credit: Ian Hartsoe)

Americans United said the mixed decision was disappointing but noted that it was narrow.

“While today’s decision isn’t what we had hoped for, the good news is that it’s very limited in its scope,” said Rachel Laser, president and CEO of Americans United. “It does not change the long-standing rule that businesses open to the public must be open to all.

“As we have long said, religious freedom should act as a shield to protect religious exercise, not as a sword to harm and discriminate against others,” Laser continued. “Our country is strongest when we are all free to practice our religion, or no religion, as we choose – without hurting others.” (The morning of the decision, Laser spoke at a rally at the Supreme Court, outlining AU’s concerns over the ruling. She also did a brief interview about the case with TV preacher Pat Robertson’s Christian Broadcasting Network and later discussed it on several podcasts.)

The American Civil Liberties Un­ion (ACLU), which represented Craig and Mullins, noted in a tweet that the decision was “based on concerns specific to the case,” arguing, “The Court did NOT rule that the Constitution gives a right to discriminate.”

“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,” Louise Melling, deputy legal director of the ACLU, said in a media statement.

Legal experts agreed that the ruling is limited in scope. Frederick Gedicks, a professor at Brigham Young University law school and expert on religion and law, told Religion News Service (RNS), “It’s a very narrow decision, basically finding that the Colorado Civil Rights Commission was not neutral towards religion, and using the expressions of distaste for Mr. Phillips’ religion as the basis for that. It’s not common for that kind of evidence to exist. What we really want to know, and what we’re really not sure of after this opinion, is what if members of the Colorado Civil Rights Commission had not expressed distaste for religion?”

Anthony Michael Kreis, a visiting assistant professor at Chicago-Kent College of Law who researches religious freedom issues, agreed. He told RNS, “Ultimately, the court ruled that when a state prohibits public accommodation discrimination, the process must be free from overt religious hostility. Importantly, the court reaffirmed that there is no general constitutional exemption from civil rights laws just because a person has a religious or philosophical objection to them. This is a decision that is solely about process, but it leaves some of the larger questions open for resolution down the road.”

Alliance Defending Freedom (ADF), a large Religious Right group that represented Phillips, had hoped for a broad decision granting business owners a legal right to deny services to LGBTQ people and others. (The bakery owner in this case is a Christian, but, under ADF’s legal theory, anyone could deny service based on any religious belief, regardless of which faith the denier practices. In addition, some Religious Right groups have even pushed allowing government officials, such as county clerks who issue marriage licenses, to turn away same-sex couples.)

When the high court issued its narrow ruling, ADF, which had taken to referring to Phillips as a “cake artist,” pivoted and issued a statement condemning the commission’s alleged hostility toward the baker. 

“Creative professionals who serve all people should be free to create art consistent with their convictions without the threat of government punishment,” ADF Senior Council Kristen Waggoner said. “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. The court was right to condemn that.”

In all of the reporting about the case, the commission’s supposed “hos­tility” toward the baker tended to be taken as a given. In fact, it consisted mainly of a statement that many people would consider to be rather uncontroversial – a commissioner pointed out that religion has historically been used by some people to oppress others.

“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. …,” observed one commissioner. “[W]e 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.”

This statement, the high court observed, “[I]s inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law – a law that protects discrimination on the basis of religion as well as sexual orientation.”

In their dissent, Justices Ruth Bader Ginsburg and Sonia Sotomayor found the statement less than compelling as evidence of any religious bias. They noted that it was just one comment by a single commissioner during a multi-layered process that included input from other commissioners and state courts, which decided the case neutrally.

The high court, Ginsburg and Sotomayor argued, should have given more weight to Phillips’ discriminatory actions.

“What matters,” the two observed, “is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.”

ADF and other Religious Right groups had hoped the decision would deliver them much more than just a rebuke to the Colorado Civil Rights Commission. The groups’ goal was to use the Masterpiece case as a vehicle to establish a broad right for religious conservatives to use their beliefs as a justification for discrimination. That didn’t happen.

Americans United and other groups argued that if they had succeeded, LGBTQ Americans and others, including anyone who failed to meet a religious business owner’s narrow moral test (such as single moms, religious minorities, non-believers, cohabitating couples, etc.) could have been denied services.

“While today’s decision isn’t what we had hoped for, the good news is that it’s very limited in its scope,” said Rachel Laser, president and CEO of Americans United. “It does not change the long-standing rule that businesses open to the public must be open to all."

Religious Right attorneys had also hoped the Masterpiece case would establish a broad principle that activities such as the creation of elaborate wedding cakes are expressive conduct, akin to publishing and journalism, that merit First Amendment protection as a free-speech issue. But the high court chose not to go down that road and simply sidestepped the question.

What happens next? The issue will likely appear before the Supreme Court again – perhaps fairly soon. A few days after the ruling, the court sent a case concerning a florist in Washington state who refused to provide flowers for a same-sex couple’s wedding back to the Washington Sup­­reme Court for a second look.

The Masterpiece ruling is already being cited by lower courts as authority for upholding anti-discrimination laws. A few days after the high court ruled, an appeals court in Arizona ruled that a calligraphy studio did not have the right to turn away LGBTQ clients.

The case, Brush & Nib Studio v. City of Phoenix, was brought by ADF on behalf of a business that, among other things, provides hand-lettered announcements for events such as weddings. The two women who own the company have not been asked to serve any same-sex couples but nevertheless asserted that a Phoenix ordinance that bars them from discriminating violates their rights. They also wanted to post a sign in their shop explaining that they don’t provide services for same-sex couples.

The Arizona Court of Appeals rejected the owners’ argument, ruling in part, “Appellants operate an economic entity and a place of public accommodation; as such, they are prohibited from discriminating against customers based on a protected class.” Furthermore, the court interpreted Masterpiece as supporting its ruling that there is no right to cite religion as grounds for discrimination.

But some people are clearly getting the wrong idea about the Masterpiece decision. In South Dakota, state Rep. Michael Clark (R) asserted on Facebook that business owners should be able to turn away anyone, for any reason.

“He should have the opportunity to run his business the way he wants,” Clark wrote. “If he wants to turn away people of color, then [that’s] his choice.”

Clark initially defended his comments in an interview with the Sioux Falls Argus Leader, remarking, “If it’s truly his strongly based belief, he should be able to turn them away. People shouldn’t be able to use their minority status to bully a business.”

After the comments sparked a pushback, Clark apologized, asserting, “I am apologizing for some of my Facebook comments. I would never advocate discriminating against people based on their color or race.”

A Tennessee man, Jeff Amyx, resurfaced in the news after the ruling. Amyx first captured headlines in 2015 when he posted a sign in his Washburn hardware store reading, “NO GAYS ALLOWED.” After public outcry, he later added another sign that read, “We reserve the right to refuse service to anyone who would violate our rights of freedom of speech & freedom of religion.”

A local television station, WBIR, contacted Amyx for an interview after the Masterpiece ruling came down. He welcomed the decision but insisted, “Christianity is under attack. This is a great win, don’t get me wrong, but this is not the end, this is just the beginning.”

While many Americans would condemn Amyx’s crude bigotry, his analysis is not far off: There’s definitely going to be more to this story.