The Supreme Court issued its anticipated decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.  The case concerns a Colorado baker’s refusal to sell a wedding cake to a same-sex couple because the baker’s religious beliefs are that “God’s intention for marriage from the beginning of history is that and should be the union of one man and woman.”  The Supreme Court ruled that the proceedings conducted by the Colorado Civil Rights Commission deprived the baker of an impartial hearing because Commission members openly disparaged the baker’s religious views.  The case demonstrates that local decision-makers, including those in the land use context, must remain fair and neutral when religious beliefs are at issue – even when they disagree with such beliefs or find them offensive.

Jack Phillips is an expert baker at Masterpiece Cakeshop, Ltd. (the Cakeshop) in Colorado and a devout Christian whose “‘main goal in life is to be obedient to’ Jesus Christ and Christ’s ‘teachings in all aspects of his life.’”  Phillips “seeks to ‘honor God through his work at [the] Cakeshop.’”  He believes that marriage should be between a man and a woman.  In 2012, Phillips refused to bake a wedding cake for a same-sex couple, Charlie Craig and Dave Mullins, because doing so would violate his religious beliefs.  At this time, Colorado had yet to legalize same-sex marriage, and the Supreme Court had not yet issued its decision in Obergefell v. Hodges, 576 U.S. ___ (2015), which extended the fundamental right to marriage to same-sex couples.

Craig and Mullins filed a discrimination complaint against the Cakeshop under the Colorado Anti-Discrimination Act (CADA) (Colo. Rev. Stat. § 24-34-601(2)(a)) with the Colorado Civil Rights Division.  CADA prohibits discrimination in places of public accommodation and defines “public accommodation” broadly to include any “place of business engaged in any sales to the public and any place offering services … to the public.”  CADA excludes “a church, synagogue, mosque or other place that is principally used for religious purposes.”

The Civil Rights Division found probable cause that CADA had been violated and referred the matter to the Colorado Civil Rights Commission.  The Civil Rights Commission then sent the matter to an Administrative Law Judge (ALJ) to conduct a formal hearing.  The ALJ concluded that Phillips’ refusal to bake a cake for Craig and Mullins violated CADA.  The ALJ rejected Phillips’ two constitutional claims under the First Amendment’s right to free speech and right to free exercise of religion.  Specifically, the ALJ rejected Phillips’ contention that using his artistic ability to prepare a wedding cake to express a message with which he disagreed was a form of protected speech.  Under the Supreme Court’s 1990 decision in Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872, the ALJ also found that because CADA is a valid and neutral law of general applicability, it did not violate Phillips’ religious beliefs.  As followers of this blog know, Smith was the impetus in part to the enactment of the Religious Freedom Restoration Act and, later, RLUIPA.

The Civil Rights Commission confirmed the ALJ’s decision in full.  Phillips appealed, and the Colorado Court of Appeals affirmed the Commission’s decision.  It rejected Phillips’ argument that the “Commission’s order unconstitutionally compels” him to “convey a celebratory message about same sex marriage” violating his protected speech.  It also rejected his religious discrimination claim under Smith, which held that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability” on the ground that it would conflict with religious practice or belief.  The Colorado Supreme Court declined to review the case.

The United States Supreme Court agreed to review Phillips’ case.  In a 7-2 decision authored by Justice Kennedy, the Supreme Court reversed on narrow grounds.  The majority opinion found that the Commission had deprived Phillips of an impartial hearing by disparaging Phillips’ religious beliefs.  The majority was particularly troubled with statements made by members of the Commission, including 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 majority determined that this statement showed religious hostility because it described Phillips’ religious beliefs as despicable and characterized the beliefs as “rhetoric,” meaning it was something insubstantial or insincere.  The majority reached this result based on its 1993 decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, which provides that when reviewing claims of religious discrimination, it is appropriate to consider statements made by the decision-makers.  According to the majority, the Commission’s consideration of Phillips’ case was “neither tolerant nor respectful” of his religious beliefs.  It also noted the Commission’s difference in treatment of Phillips’ case and its approach in other similar cases.  In those cases, the Civil Rights Division considered the refusal of other bakers to create cakes with images showing disapproval of same-sex marriage and religious text.  According to the Civil Rights Division, the bakers lawfully refused to bake such cakes.  A majority of the justices, however, viewed it as proof that the Commission acted with religious hostility in reviewing Phillips’ case.

Although the decision is narrow, the Supreme Court notes the difficult issues if it were to consider Phillips’ free speech and free exercise claims under CADA.  For one, the majority opinion suggests that creating wedding cakes could be a form of speech: “The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech.  This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.”

The majority opinion also describes the trouble with the free exercise aspect of this case:
“The same difficulties arise in determining whether a baker has a valid free exercise claim.  A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless.”

Justice Gorsuch wrote a concurring opinion joined by Justice Alito. Justice Gorsuch’s opinion is noteworthy because he writes that the decision in Smith (authored by Justice Scalia) “remains controversial in many quarters.”  Still, he relies on Smith in concurring with the result reached by the majority.  Justice Kagan concurred in the majority’s opinion and was joined by Justice Breyer.   Justice Thomas concurred in part and was joined by Justice Gorsuch, finding that forcing Phillips to bake a wedding cake for same-sex couples in violation of his beliefs was a form of protected speech.  Justice Ginsburg was joined by Justice Sotomayor in dissenting on the ground that the evidence did not show the Commission had discriminated.

All of the opinions in in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission are available here.

Original photograph by Victoria Watkin-Jonessome rights reserved.

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.