Same-sex wedding cake ruling is mixed
Businesses, regardless of their owners’ religious beliefs, are bound by state laws that require equal treatment for lesbians and gays. And state agencies that enforce those laws must avoid hostility toward religion.
Those were the seemingly conflicting messages from Monday’s longawaited U.S. Supreme Court ruling on a Colorado baker’s refusal to make a wedding cake for a same-sex couple.
While seven of the nine justices said Colorado’s Civil Rights Commission had violated the baker’s right to a fair and neutral assessment of his objections in ruling against him — one commissioner recalled that religious freedom had been used to justify slavery and the Holocaust — the court did not define the boundaries between freedom from antigay discrimination and the First Amendment freedoms of religion or speech.
By choosing to leave that for a future case, the court gave room to both sides Monday to claim vindication.
“This is a huge victory for the religious rights (of ) private citizens,” said Mat Staver, chairman of Liberty Counsel, a religious conservative nonprofit that supported the Colorado baker. “People should not be forced to speak a message that violates their conscience.”
The American Civil Liberties Union,
which represented the gay couple, countered that the ruling, though it went against the couple, “reaffirmed the core principle that businesses open to the public must be open to all.”
Other gay-rights advocates criticized the court for allowing the baker to refuse equal treatment mandated by state law. Rachel Tiven, chief executive of Lambda Legal, said the decision gives “dangerous encouragement to those who would deny civil rights to LGBT people.” And San Francisco Supervisor Jeff Sheehy said it was “horrifying” that the same court that recognized his community’s marriage rights “would take back our rights to public accommodations based on a religious argument.”
The same clash of rights arises in other pending cases, including an appeal awaiting Supreme Court review by a florist in Washington state who refused, for religious reasons, to prepare a flower arrangement for a same-sex couple’s wedding. The court said the cases raise difficult issues that “must await further elaboration.”
The ruling “leaves open both of the fundamental questions presented in this case: whether a wedding cake is artistic expression” protected by freedom of speech, and “the appropriate balance between religious liberty and civil rights,” said Jocelyn Samuels, executive director of UCLA Law School’s Williams Institute, which examines sexual-orientation issues.
Nonetheless, said Catherine Hardee, an assistant professor at Cal Western School of Law in San Diego, the court’s multiple opinions in the case indicate that most of the justices believe laws against discrimination “are proper even when an individual or a business disagrees with them.”
For example, despite ruling in favor of the Colorado baker, Justice Anthony Kennedy closed his majority opinion by declaring that such disputes must be resolved “without subjecting gay persons to indignities when they seek goods and services in an open market.”
The only apparent dissenters, Hardee said, are Justices Neil Gorsuch, Samuel Alito and Clarence Thomas.
Meanwhile, laws prohibiting businesses from discriminating based on sexual orientation remain in effect in California, 20 other states and the District of Columbia. The absence of such a federal law prompted observations in 2015, when the high court ruled that same-sex couples had a constitutional right to marry, that they now had the right to wed on Sunday and be fired from their jobs on Monday.
Monday’s ruling also had no apparent impact on the 1996 decision by the California Supreme Court requiring businesses — in that case, a landlady with religious objections to renting to an unmarried couple — to follow state civil rights laws regardless of their personal beliefs.
In the Colorado case, Jack Phillips, owner of Masterpiece Cakeshop in the Denver suburb of Lakewood, said he was open to all customers but, because of his Christian beliefs, would not design a wedding cake for Charlie Craig and Dave Mullins in 2012. Colorado had not yet legalized same-sex marriage — the couple planned to wed in Massachusetts — but they sued Phillips under a state law forbidding discrimination in places of public accommodation.
Phillips contended that the law violated both freedom of speech — since designing the cake was, in his view, an act of artistic expression — and freedom of religion. His arguments, rejected by state courts, splintered the nation’s high court, which produced five separate opinions, but a majority joined the opinion by Kennedy, author of the 2015 marriage ruling and other major gay-rights decisions.
“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts,” Kennedy wrote, adding that “religious and philosophical objections ... do not allow business owners and other actors in the economy to deny protected persons equal access to goods and services” under state laws like Colorado’s. He cited the court’s 1968 ruling that required a barbecue establishment’s owner to serve black customers despite the owner’s religious objections.
Kennedy also seemed skeptical of Phillips’ free-speech claim, saying that “few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech.”
But he said the issue might be presented more clearly if a baker refused to design a cake with “words or images celebrating the marriage.” And in this case, Kennedy said, Phillips’ refusal was “based on his sincere religious beliefs and objections,” and he was denied his right to a fair hearing by the state Civil Rights Commission.
Kennedy singled out comments by one commission member, who said in a July 2014 hearing that freedom of religion “has been used to justify all kinds of discrimination,” including slavery and the Nazi Holocaust, and that “one of the most despicable pieces of rhetoric that people can use (is) to use their religion to hurt others.”
That language cast doubt on the commission’s impartiality and was evidence of “hostility to a religion or a religious viewpoint,” Kennedy said. He said the commission had used a different standard when it upheld other bakers’ refusal to make wedding cakes that carried religious messages condemning gays.
Such cases raise difficult issues that “must await further elaboration in the courts,” Kennedy said.
In dissent, Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, said the comments of one or two state commission members did not demonstrate an overall hostility to religion or excuse the baker’s “refusal to sell any wedding cake to a gay couple.”
The case is Masterpiece Cakeshop vs. Colorado Civil Rights Commission, 16-111.