A Masterpiece of Judicial Avoidance?

by Roman Friedrich

Roman is an Austrian lawyer currently working as a legislative assistant and human rights researcher at the Ludwig Boltzmann Institute for Human Rights (based in Vienna, Austria)

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. __ (2018), the U.S. Supreme Court’s blockbuster case has been decided – unusually early (June 4) given the case’s supposed or initial importance.

The two questions before the Court were the following: 1. Can a person, exercising religious beliefs, claim an exemption from anti-discrimination laws? 2. Can the Government, acting under an anti-discrimination statute, force a person to engage in speech that goes against this person’s religious belief?

These momentous legal questions, going to the heart of the interplay between anti-discrimination laws so fundamental in a country still riddled with widespread discrimination of non-White citizens and the freedoms guaranteed by the First Amendment – freedom of speech and the free exercise of one’s religion – arose from the following facts:

In 2012, Mr. Phillips, owner of Masterpiece Cakeshop, professional baker and devout Christian, refused to sell a custom-made wedding cake to Charlie Craig and David Mullins. The couple planned to marry in Massachusetts, where same-sex marriage had already been legalized by 2012 and celebrate a big post-wedding bash in their Colorado home thereafter. Based on his deeply-held antipathy towards gay marriage based on his Christian faith, Mr. Phillips refused to sell the couple a custom-made cake. Phillips believes that decorating cakes is a form of art through which he can honor God and that it would displease God to create cakes for same-sex marriages. The couple sued and the Colorado Civil Rights Commission found Phillips in violation of the Colorado anti-discrimination law and ordered him to create custom wedding cakes celebrating same-sex marriages if he creates similar cakes for one-man-one-woman marriages, retrain his staff to do likewise, and report back to the Commission.

The case implicates both the First Amendment’s freedom of speech as well as its guarantee of free exercise of religion. During the oral arguments, the former appeared to be primarily on the Justices’ minds. This is unsurprising because Mr. Phillips would face an uphill-battle claiming an exemption from his obligation to treat same-sex couples equally based on his Christian faith. The case falls squarely into the conflict between general laws and people’s individual faiths (or specific interpretations based thereupon) – a conflict the Court resolved decades ago, in Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 884 (1990): In Smith, Justice Scalia held that the Free Exercise Clause does not grant exemptions from neutral and generally applicable laws, no matter how deeply-held a religious belief may be.

The freedom-of-speech argument, in my view, is much stronger. If Phillips had convinced the Court, under its own varied and complicated jurisprudence regarding what is “(pure) speech”, that creating a custom-made cake is indeed “speech”, victory would have been his. The Court has never accepted the Government forcing an individual to engage in speech he disagrees with, see Agency for Int’l Dev. v. Alliance for Open Soc. Int’l, Inc., 133 S. Ct. 2321, 2327 (2013), „It is, however, a basic First Amendment principle that ‘freedom of speech prohibits the government from telling people what they must say.’”, not even in the context of LGBT rights, see Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 S. Ct. 557 (1995) (Government cannot mandate access of an LGBT group to Boston’s St. Patrick’s Day Parade over the organisers’ objection). Hence, had he succeeded to convince the Court that cake-baking is a form of speech, Phillips would have had a strong case.

Personally, however, I do not believe that there was “speech”: While a cake may transport a message, in this case, it was the couple that was speaking (to itself and its guests), not their baker. Hence, there would be no speech whose protection Phillips could claim, but under the Court’s varied jurisprudence on “speech”, a different outcome would have hardly been surprising.

Anyway, in the end, the majority opinion does not cover the free speech argument at all. Instead, the case has been resolved on much narrower grounds, leaving the questions presented unanswered: “Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.” (emphasis added). The holding, the opinion reveals at the outset, would basically be limited to this case. This is why: Justice Kennedy did not find that either the Commission or the lower courts misapplied the law, but he took issue with the fact that there was “clear and impermissible hostility toward the sincere religious beliefs that motivated his objection”, basically a procedural problem. This was manifested in the statement made by a Commissioner to Phillips : “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.” While this phrase is not inaccurate from a historic point of view, Justice Kennedy found it wholly inappropriate in legal proceedings before a state agency. Accordingly, the decision was flawed and needed to be set aside. (Justice Ginsburg, dissenting, argues, of course, that one such remark cannot be enough to reverse the decision made by a reviewing court.)

The big question, now, is this: What is next? While Justice Kennedy’s opinion gathered six more votes, this question is where two of the concurring judges (Kagan and Gorsuch) disagree: Justice Kagan’s opinion seems to imply that the Commission, having the case on its desk again, could render exactly the same decision, omitting the demeaning remarks by individual Commissioners that the majority found demeaning. Justice Gorsuch, however, disagrees, believing that the Commission’s decision was not only tainted by the open hostility it displayed, but that, in light of the Commission’s prior jurisprudence on bakers refusing to sell cakes, Phillips was treated unequally and unfairly. In his view, hence, a hostility-free decision would not suffice.

The one thing that one can see clearly is that virtually nothing has become clear. A closer view of the case, however, might reveal the Court’s recalcitrance to clarify the questions presented through Masterpiece: After all, it is what Supreme Court experts call a “bad vehicle”, a case unsuited to rule on fundamental questions that potentially have implications for a large number of similar cases. First, the record is not entirely clear (“the parties disagree as to the extent of the baker’s refusal to provide service.”) Second, the factual situation took place in 2012, when same-sex marriage was not legal in Colorado and most other U.S. States. Before Obergefell v. Hodges, 576 U.S. __ (2015) (which established a Fourteenth Amendment right to same-sex marriage and the recognized States’ obligations to recognize such marriages from other States) it was not even clear whether a State must accept an out-of-State same-sex marriage. And third, of course, the record was tainted with anti-religion statements by one decision-maker that disquieted seven Justices. Given all that, the Court’s decision does not stretch far beyond this specific (and unusual) case. A case expected to hand civil rights groups yet another victory in their fight for LGBT equality, was decided on grounds so narrow that they account for little more than error-correction (something that the U.S. Supreme Court is usually anxious to avoid). To spare the American legal community (and public) an opinion that says virtually nothing about the issues underneath the case, the Court, in my view, should have “DIGged” the case: Whenever the Court finds out that granting the writ of certiorari, even after careful consideration, was a bad idea (such as because there is a standing problem or the case has become moot), it dismisses the writ as improvidently granted (D-I-G). Even though the parties, having spent much ink on legal briefs and millions on those writing them, would not have cherished a non-decision by the Court, it probably would have been prudent to wait for another case that presents a clean vehicle for these extremely important questions.

“The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, (…)”, wrote Justice Kennedy. While the battle of law review articles and comments will certainly ensue, the Court’s opinion has not answered these “difficult questions”.





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