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Supreme Court Sets Aside the Balance Between Religion and Homosexuality for Another Day

The U.S. Supreme Court issued its highly anticipated decision in Masterpiece Cakeshop, LTD. V. Colorado Civil Rights Commission (2018). However, it did not provide the essential guidance hoped for on how to balance religious beliefs with the right of same-sex couples to equality in public life.
In 2012, Charlie Craig and Dave Mullins wanted a cake to celebrate their upcoming marriage. Because same-sex marriage was not yet legal in their home state of Colorado, they intended to marry elsewhere and then celebrate at home. Jack Phillips, owner of Masterpiece Cakeshop in Colorado, was a devout Christian. He believed that it was “God’s intention” that marriage “is and should be the union of one man and one woman.” Mr. Craig and Mr. Mullins entered Mr. Phillips’ store to request a cake to celebrate their upcoming marriage. In response, Mr. Phillips stated that he did not “create” wedding cakes for same-sex weddings. He let them know that he would sell them baked goods for other occasions, just not their wedding. When Mr. Craig’s mother followed up with the baker by phone, he reiterated his objection, adding that it was based on his religious beliefs and Colorado’s non-recognition of same-sex marriage.
At the time of these exchanges, Colorado did prohibit sexual orientation discrimination in places of public accommodation. It was undisputed that this Colorado bakery was a place of public accommodation. Businesses could not deny services and goods based on sexual orientation or race, color, sex, marital status, national origin, or ancestry. Mr. Craig and Mr. Mullins pursued their claim of discrimination under this law through the required administrative processes, which began with the Colorado Civil Rights Division. Finding that Mr. Phillips had violated Colorado law, the Civil Rights Division referred the case to the Colorado Civil Rights Commission. Statements made during that Commission’s hearings are the cornerstone of the Supreme Court’s ruling in this case.
At the state level, Mr. Phillips argued that he had not violated Colorado’s law and that forcing him to make a cake violated his First Amendment right to free speech and violated his right to the free exercise of religion. The Commission rejected each of those arguments. He appealed to the Colorado Court of Appeals and that court affirmed the Commission’s decision. The Colorado Supreme Court declined to hear the case. Mr. Phillips appealed the case to the U.S. Supreme Court.
The Supreme Court did not determine the substantive questions presented by Mr. Phillips’ appeal. There is no analysis or weighing of First Amendment protections against the rights of same-sex couples to live with equality and dignity. Justice Anthony Kennedy, writing for the majority, does opine at the outset that gay persons “cannot be treated as social outcasts or as inferior in dignity and worth.” He also writes that religious objections are protected but as a general rule do not entitle business owners to “deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
Mr. Phillips maintained throughout the process that his creation of a cake for a same-sex wedding would express an endorsement of something that his religious beliefs preclude. He also argued it was reasonable for him to believe he could refuse to bake a cake to support an act not lawful in Colorado. The Court also noted that state law at the time allowed business owners some liberty to decline to craft messages that they deemed offensive. In fact, while Mr. Philips’ state proceedings were happening, the Civil Rights Division ruled in favor of at least three other bakers who refused to make cakes that were demeaning to same-sex couples.
For the Supreme Court, the primary issue of the Cakeshop case was the lack of “neutral and respectful consideration” for Mr. Phillips’ religious beliefs at the state level. It was the Court’s conclusion that the Civil Rights Commission showed a “clear and impermissible hostility” towards Mr. Phillips’ beliefs. This hostility was evidenced in records of the formal hearings. These records reflected a viewpoint held by some of the commissioners that religious beliefs may not be acted upon in the business sphere. According to the Court, the most persuasive evidence of hostility was found in the second formal hearing. It was this evidence that the Supreme Court quoted in its entirety. A commissioner stated the following:

“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 last sentence was deeply problematic for the Supreme Court as was comparing Mr. Phillips’ objections in this case to slavery and the Holocaust. Justice Kennedy found it “inappropriate” to refer to religious beliefs in this manner when the Commission was constitutionally charged with the fair and neutral enforcement of Colorado’s anti-discrimination law; a law that protects religion as well as sexual orientation. The fact that no one else on the commission, or any of the courts that later reviewed the matter, were concerned about the comment bolstered the Court’s opinion that the state was hostile to Mr. Phillips’ beliefs.
Lastly, the Commission’s support of the bakers who refused to create cakes that were derogatory about same-sex marriage also showed its disparate treatment with respect to Mr. Phillips. That the conscience-based objections were deemed more legitimate by the state than Mr. Phillips’ deeply held religious objections only bolstered the impression of its lack of neutrality towards him. Colorado had a constitutional obligation under the Free Exercise clause to view Mr. Phillips’ religious beliefs without judgment or hostility and in a tolerant manner.
Held: The Commission’s actions in this particular case violated the Free Exercise Clause. Thus, the Court reversed the Commission’s decision. In its conclusion, Justice Kennedy also noted that the underlying issues in this case must await further “elaboration in the courts,” and that these disputes should be resolved with “tolerance,” balancing sincere religious beliefs with the rights of gay persons to not be subjected to indignities when seeking goods and services.