J une is brides’ month. It’s also Supreme Court month, the time when the court issues its blockbuster decisions for the term and then recesses until October.
On June 4, the court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission. That is the case where Jack the baker refused to create a cake for the 2012 wedding party of David and Charlie.
At the time Colorado didn’t have gay marriage, so the plan was for David and Charlie to get married in Massachusetts, then have the party in Colorado. Jack declined to participate. His religion teaches that marriage is between a man and a woman. When David and Charlie charged him with violating Colorado’s public accommodations law, he turned to the First Amendment freedoms of religion and speech.
Jack’s decision not to do business with David and Charlie would appear to run directly counter to the Colorado law, which says that anyone selling goods or services to the public may not discriminate on account of sexual orientation. Such laws, covering race, creed, color, and other protected categories, exist in every state (though not all include sexual orientation).
David and Charlie won their case, first before the Colorado Civil Rights Commission and then in the Colorado courts. Jack went to the Supreme Court.
When I wrote about this case last November, I declined to predict who would win but expressed the view that David and Charlie should win because I could see no way to distinguish a creative cake baker from a florist, a musician, or others who provide services for couples getting married. Besides, suppose a person’s religion teaches that interracial or interfaith marriage are wrong? Where do we draw the constitutional line?
Well, they lost. But the Court’s 7-2 decision doesn’t answer the questions everyone was asking: Is there a “religious exception” to the public accommodations law? Is creative cake baking a form of expression?
In his opinion for the majority, Justice Kennedy acknowledges the case raises “conflicting principles,” both protected by the Constitution — freedom to marry on one side, freedom of religion on the other. How this conflict will be resolved awaits another case.
The reason is that a member of the Civil Rights Commission made an intemperate remark during the initial hearing, to which none of his fellow commissioners objected. He said that freedom of religion has historically been used to justify “all kinds of discrimination,” citing slavery and the Holocaust as two examples and calling it “despicable rhetoric.”
Justice Kennedy took umbrage over this when the case was heard last fall, and his opinion minces no words. Religious hostility has no place in our law, and where the state fails to adhere to the obligation of “religious neutrality,” its decision cannot stand. The commissioner’s remarks, and the failure of the other commissioners to object, so infected the process that Jack was denied his right to a fair and impartial hearing. Thus Jack has prevailed because consideration of the case at the local level “was neither tolerant nor respectful.”
Justices Kagan and Breyer agreed but went on to write a concurring opinion saying that Jack “unlawfully discriminates” by selling cakes to opposite sex couples and not to same-sex couples. They side with Jack not because they think what he did was right but because they think the way the commission handled the case was wrong.
Justice Kennedy’s opinion implies that he agrees with them. He has written all of the court’s gay rights decisions, including the 2015 gay-marriage case (Obergefell), and the Cakeshop ruling can be seen more as one against the Civil Rights Commission than in favor of Jack the baker.
Justices Gorsuch and Thomas would have gone further and ruled in Jack’s favor on constitutional grounds. Their opinions are hard to follow, so much so in the case of Gorsuch that Justice Ginsburg’s dissent devotes a lengthy footnote to its incomprehensibility. Justice Thomas, at least, is clear. He sees this as a straightforward freedom of speech case and would uphold Jack on the grounds that he has a First Amendment right not to create a cake that necessarily aligns himself with same-sex marriage.
The lone dissenters, Justices Ginsburg and Sotomayor, ask this question: Why should the commissioner’s unfortunate remark overcome Jack’s refusal to sell a cake to David and Charlie?
What are we to make of this case? Justice Kennedy, long an ardent supporter of religious rights, could have chosen a different direction, criticizing the local commissioners and then addressing the issues at hand. Instead he left them for another day. My guess is that Chief Justice Roberts’ hand is behind this. Notably, he joined Kennedy’s opinion only.
Is cake baking a form of expression? Does the right not to speak, or the right to oppose same-sex marriage on religious or philosophical grounds, provide grounds for not obeying the public accommodations law? Would a decision in favor of David and Charlie mean that Jack can be forced to engage in expression, meaning his creative cakes, which would signify his approval of gay marriage?
Here the court found a way to kick the can down the road, but maybe not for long. The Supreme Court of the state of Washington has ruled against a florist who refused to provide flower arrangements for a same-sex wedding, arguing freedom of expression and religion. The Supreme Court hasn’t yet decided whether to review the case.