By Isaac Cui (PO ’20)
The Supreme Court yesterday released opinions in Masterpiece Cakeshop v. Colorado Civil Rights Commission,[1] a highly-anticipated case which seemed to pit the civil rights of gay people against the religious objections of others. While the holding of the case was nominally in favor of the petitioner, who sought protection for his religious objections against Colorado’s anti-discrimination law, the actual outcome is far less certain—and, I argue, probably favorable in the long run to supporters of gay and lesbian rights.
A quick review of the facts. Charlie Craig and Dave Mullins, a gay couple, sought to buy a wedding cake from Jack Phillips, who owns Masterpiece Cakeshop, a bakery outside of Denver, Colorado.[2] Phillips refused to create a wedding cake for the two, explaining that his religion compelled him to oppose same-sex marriage and that to create such a cake would require him to personally endorse the marriage.[3] After this refusal, Craig and Mullins filed a complaint with the Colorado Civil Rights Division,[4] stating that Phillips’s actions violated the Colorado Anti-Discrimination Act (CADA), which outlaws discrimination based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry” in public accommodations.[5] The Civil Rights Division, believing that there was probable cause that Phillips violated CADA, referred the case to the Civil Rights Commission.[6] After various administrative procedures, the Commission was confronted with the issue of whether Phillips’s actions could be justified by the First Amendment’s protections for free speech or the free exercise of religion.[7] The Supreme Court reviewed whether Phillips should be protected under the Free Speech and Free Exercise Clauses.[8]
First, a comment on what the Court actually decided in this case. Six justices ultimately signed on to the opinion authored by Justice Kennedy, which held only that the Colorado “Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment . . . .”[9] Justice Kennedy’s opinion is actually quite straightforward in justifying this decision. He points, for example, to public statements the Colorado Civil Rights Commissioners made that showed “clear and impermissible hostility toward the sincere religious beliefs that motivated [Phillips’] objection” to baking the cake;[10] among those statements was the claim that that freedom of religion was used to justify slavery and the Holocaust.[11] The Commissioners, Justice Kennedy noted, described Phillips’ religious exemption as “despicable”[12] and characterized his beliefs as “merely rhetorical—something insubstantial and even insincere.”[13] Because of such comments—and because other commissioners made no objection to them—Justice Kennedy found that the Commission’s adjudication of Phillips’ case was not “fair[] and impartial[.]”[14] Because the Free Exercise Clause compels the government to “proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs,”[15] the Commissioners actions were unconstitutional.
Notice how narrow that justification is. The bigger, fundamental questions remain undecided by the opinion. For example, Justice Kennedy’s opinion opens by framing the case as being about two core principles that are difficult to reconcile: the “authority of a State and its governmental entities to protect the rights and dignity of gay persons . . . who face discrimination when they seek goods or services”[16] and “the right of all persons to exercise fundamental freedoms under the First Amendment . . . .”[17] By focusing on this specific case—see how Justice Kennedy notes that “[w]hatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commision’s consideration of this case was inconsistent with the State’s obligation of religious neutrality”[18] (emphases added)—the Court side-stepped the more fundamental clash of principles. And moreover, there are signs that indicate support for anti-discrimination laws (with the caveat that they be applied by a neutral decisionmaker). For example, Justice Kennedy writes that “it must be concluded that the State’s interest [i.e., in preventing discrimination in public accommodations] could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed” (emphasis added).[19] It also notes that “[o]ur 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.”[20] Justice Kennedy’s opinion even goes on to read that “[i]t is unexceptional that Colorado law can protect gay persons . . . in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public”[21] (emphasis added). While these statements don’t obviously imply that a religious exemption will lose, they do show that Justice Kennedy is acutely aware of the need for anti-discrimination laws, and perhaps that he will uphold them in the face of a Free Exercise challenge so long as the government acts with necessary neutrality.
The ultimate outcome of this case is quite limited in scope. The Court anticipates that the clash between religious freedom/free speech and anti-discrimination laws “must await further elaboration in the courts,”[22] but the Supreme Court included quite a bit of language to justify anti-discrimination laws and to protect lesbian and gay people from religious-exemptions.[23]
That being said, the separate opinions do demonstrate that there is robust debate among the justices about how to resolve the thornier issues. For example, Justice Gorsuch’s opinion, joined by Justice Alito, argues that if the Colorado law allows a baker to refuse to make a cake that includes anti-gay slurs on it, the law must also allow Phillips to avoid making a cake that sanctions same-sex marriage.[24] Justice Kagan’s opinion, joined by Justice Breyer, disagrees and argues that an asymmetry is justifiable[25] because CADA simply would not apply to the individuals who seek a cake which includes language that denigrates gay people.[26] And Justice Thomas’s opinion, joined by Justice Gorsuch, argues that Phillips’s actions should be protected under the Free Speech Clause, an issue which the Court’s opinion ultimately is silent on.[27] Throughout all of this, Chief Justice Roberts joined only the majority opinion, which might indicate greater support in favor of these anti-discrimination laws—although it also could just mean that the Chief Justice did not want to opine on anything beyond what was required to resolve the instant case.[28]
In short, the Court will very likely end up hearing another case which more clearly forces the Free Exercise, or Free Speech, Clauses to confront a neutrally-applied, anti-discrimination statute. And in that case, the Court will be faced with a tougher issue; it will probably divide more bitterly, and a 7-2 opinion is unlikely absent drastic change in the Court’s membership.
Masterpiece Cakeshop may also matter for other blockbuster cases on the Court’s current docket. For one, Justice Kennedy’s questions in the travel-ban case, Trump v. Hawaii, demonstrate that he cares about discriminatory intent. The Solicitor General in that case argued that when the president-elect takes an oath of office, that action marks a “fundamental transformation” into becoming the president, which implies that a president’s campaign statements cannot be used to evaluate his or her actions once in office.[29] In response to that assertion, Justice Kennedy posed a hypothetical about a candidate for mayor who makes “vituperative[,] . . . hateful statements” and then, upon winning the election, “takes acts that are consistent with those hateful statements.”[30] Justice Kennedy’s incredulity at the Solicitor General’s response—that those words are irrelevant[31]—shows that he could be willing to reject the government’s position on the travel ban because of discriminatory intent.
Indeed, his opinion in Masterpiece Cakeshop almost seemed to preempt this reading by stating that “[m]embers of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. . . . In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case”[32] (internal citation omitted). If the Court in Trump v. Hawaii rules in favor of the government, they surely will cite these words, though the inclusion of that dictum seems only to indicate that there is disagreement among the justices who signed on to Justice Kennedy’s opinion. Moreover, the citation in that passage indicates that Justice Kennedy believes that the Court is able to use lawmakers’ statements to evaluate discriminatory intent. After all, the citations refer to two opinions in Church of Lukumi v. Hialeah—one authored by Justice Kennedy and the other authored by Justice Scalia. It was only the concurrence by Justice Scalia, joined only by then-Chief Justice Rehnquist, that actually took the position that, for the purposes of the Free Exercise Clause, the Court should not look at “the subjective motivation of the lawmakers.”[33] Justice Kennedy’s opinion specifically noted that determining legislative intent, for the purposes of the Free Exercise Clause, includes as relevant evidence “contemporaneous statements made by members of the decisionmaking body.”[34] The application to Trump v. Hawaii is therefore straightforward.
The issue of discriminatory intent may also matter for the various redistricting cases on the Court’s docket—the partisan gerrymandering cases, Gill v. Whitford (about Wisconsin’s state legislative districts) and Benisek v. Lamone (about a congressional district in Maryland), as well as the racial gerrymandering case, Abbott v. Perez. In those cases, courts have often been hesitant to make findings of discriminatory intent—even though many of these cases have extremely blatant records of intent. Masterpiece Cakeshop offers some precedent on what is required to make a finding of discriminatory intent (namely, that the failure of officials to condemn or object to constitutionally-suspect statements is probative in finding organizational intent), which may help the challengers in those cases.
[1] Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, No. 16-111, slip op. (U.S. Jun. 4, 2018).
[2] Id. at 3-4.
[3] Id. at 4.
[4] Id. at 6.
[5] Colo. Rev. Stat. §24-34-601(2)(a) (2017).
[6] Id. at 7.
[7] U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech . . . .”); id. (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”). Of course, these rights protect against state infringement as well, as a result of the incorporation doctrine. See Gitlow v. New York, 268 U.S. 652 (1925) (free speech is protected from state interference under the Fourteenth Amendment); Cantwell v. Connecticut, 310 U.S. 296 (1940) (same for the Free Exercise Clause).
[8] Masterpiece Cakeshop, slip op. at 9.
[9] Id. at 16.
[10] Id. at 12.
[11] Id. at 13.
[12] Id.
[13] Id. at 13-14.
[14] Id. at 14.
[15] Id. at 17.
[16] Id. at 1.
[17] Id. at 2.
[18] Id. (emphases added).
[19] Id. at 17-18 (emphasis and alteration added).
[20] Id. at 9.
[21] Id. at 10 (emphasis added).
[22] Id. at 18.
[23] See, e.g., Masterpiece Cakeshop, slip op. at 1-2 (Ginsburg, J., dissenting) (quoting dicta from Justice Kennedy’s opinion which would justify such laws).
[24] Masterpiece Cakeshop, slip op. at 2 (Gorsuch, J., concurring).
[25] Masterpiece Cakeshop, slip op. at 4 (Kagan, J., concurring).
[26] Id. at 2 (Kagan, J., concurring).
[27] Masterpiece Cakeshop, slip op. at 2 (Thomas, J., concurring); but see Masterpiece Cakeshop, slip op. at 1 n.1 (Ginsburg, J., dissenting) (noting that “the court does not hold that wedding cakes are speech or expression” and voicing opposition to Justice Thomas’s arguments to the contrary).
[28] Thus, it is somewhat difficult to know what the Chief Justice thinks about these issues. Cf. Joshua Matz, No, the Chief Justice Did Not Just Embrace Obergefell, Take Care Blog (Jun. 27, 2017), https://takecareblog.com/blog/no-the-chief-justice-did-not-just-embrace-obergefell (last visited Jun. 4, 2018).
[29] Transcript of Oral Argument at 28:2-10, Trump v. Hawaii, No. 17-965 (U.S. Apr. 25, 2018).
[30] Id. at 28:13-19.
[31] Id. at 29:2-3.
[32] Masterpiece Cakeshop, slip op. at 14 (internal citation omitted).
[33] City of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 558 (1993) (Scalia, J., concurring).
[34] Id. at 540 (Kennedy, J.).
