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Commissioner's comments burn wedding cake plaintiffs.

Byline: Ted Haller

The baker had cake, the couple had money. They only exchanged words. The transaction-less encounter-turned-lawsuit emerged as a Supreme Court opinion focused on neither the baker, the cake, nor the couple. But on commissioners.<br />The judicial sleight-of-hand allowed Justice Anthony Kennedy to author a 7-2 decision in favor of the baker without addressing the trickier issue of what happens when religious rights and equal access intersect at the cash register.<br />The "delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power," Kennedy concluded, "must await further elaboration in the courts."<br />The Supreme Court published Masterpiece Cakeshop v. Colorado Civil Rights Commission nearly six years after a same-sex couple asked Jack Phillips about baking a cake for their wedding reception. The pair planned to first marry in Massachusetts since Colorado had not yet legally recognized same-sex marriages.<br />Phillips told the men, Charlie Craig and Dave Mullins, that he did not bake cakes for same-sex weddings, and later explained to Craig's mom that making the cake would "go against the teachings of the Bible."<br />The couple filed a discrimination complaint with the Colorado Civil Rights Division, alleging a violation of the Colorado Anti-Discrimination Act, or CADA, which prohibits refusal of "the full and equal enjoyment of" goods and services based on various protected statuses, including sexual orientation. The investigation found Phillips violated CADA and referred the case to the Colorado Civil Rights Commission.<br />The case went from the commission to an administrative law judge, who ruled in the couple's favor, then back to the commission, and eventually to the Colorado Court of Appeals, which affirmed the commission's determination that Phillips had violated CADA. Phillips sought review by the U.S. Supreme Court after the Colorado Supreme Court declined to hear the case.<br />'Neutral and respectful consideration'<br />On Monday, the Supreme Court majority opinion put the spotlight on the commission's conduct, not the baker's, and held that the commission violated the Constitution's Free Exercise Clause by failing to provide Phillips with "neutral and respectful consideration of his claims in all the circumstances of the case."<br />First, Kennedy noted commissioners' hostile rhetoric toward Phillips' religious beliefs; one commissioner said, "It is one of the most despicable pieces of rhetoric that people can use toto use their religion to hurt others."<br />Second, Kennedy concluded the commissioners were "inconsistent" in their treatment of bakers, referencing cases where the commission did not fault bakeries that objected to making cakes with anti-gay messages on them.<br />Justice Ruth Bader Ginsburg dissented, joined by Justice Sonia Sotomayor, noting "there is much in the Court's opinion with which I agree," but continued, "I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips' refusal to sell a wedding cake."<br />Ginsburg also rejected comparisons to the other bakeries that would not sell cakes with anti-gay messaging, pointing out Phillips declined to make the cake "solely on the identity of the customer requesting it," making his conduct objectionableunlike the other bakers who refused service "due to the demeaning message" requested.<br />In concurring opinions, other justices wrestled with what to make of the commission's treatment of the three bakeries that objected to selling cakes with anti-gay messages.<br />Justice Elena Kagan, joined by Justice Stephen Breyer, argued Colorado was not playing favorites with the kind of conscientious objections it considered legitimate. Phillips' conduct, Kagan wrote, was distinguishable from the other three bakeries because "the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple."<br />In his concurring opinion, Justice Neil Gorsuch, joined by Justice Samuel Alito, argued the commissioners' approval of bakers who refused to bake anti-gay cakes did not square with the commissioners' condemnation of Phillips' refusal to bake one for a same-sex couple's reception, writing "the place of secular officials isn't to sit in judgment of religious beliefs, but only to protect their free exercise."<br />Justice Clarence Thomas, joined by Gorsuch, filed a concurring opinion to argue the cake was a form of expression, protected by the First Amendment's right to free speech.<br />Experts and advocates react<br />The case may have little impact on Minnesota's analogous public accommodation law, which has a different procedure for complaints than Colorado's law. In a statement to Minnesota Lawyer, a spokesperson for the Minnesota Department of Human Rights wrote the case "is very narrow in scope and does not impact accommodations law in Minnesota given the underlying facts of the dispute."<br />The MDHR reports the department has handled two charges of public accommodation discrimination based on sexual orientation made by residents "seeking to have a same-sex wedding," but does not have any similar open investigations.<br />The broader impact of the opinion had both civil rights and religious liberty advocates claiming various levels of victory, including the Alliance Defending Freedom, a nonprofit that supported Phillips' litigation and heralded the decision as a "win."<br />Thomas Berg, a professor at the University of St. Thomas School of Law in Minneapolis, followed the litigation closely. Berg supports same-sex marriagefiling amicus briefs in favor of the couples in the Windsor and Obergefell cases, and he supports strong religious protectionsfiling an amicus brief in favor of the baker.<br />Berg said the opinion makes clear the court will have little tolerance for even "subtle" government hostility toward religious objectors, but also that any such exceptions must be narrow "so that LGBT people can participate fully in the marketplace."<br />"It kicks the can down the road," said John Gordon, executive director for the ACLU of Minnesota. "What the opinion addressed is the procedural question of whether the Colorado Human Rights Commission was hostile to the religion of one of the litigants in front of it."<br />Erin Bryan, board chair for the Minnesota Lavender Bar Association, said "it's important to not concede this as a setback for equality," and a statement from OutFront Minnesota said the opinion "reaffirmed the importance" of anti-discrimination laws.<br />Dale Carpenter, a constitutional law professor at the Southern Methodist University's Dedman School of Law said "simple refusals to serve gay weddings are not going to survive."<br />Still unclear, however, is where justices will balance the sometimes-competing interests of religious and civil liberties.<br />Kennedy offered hints. He wrote, "[T]he member of clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony."<br />But he warned that "if that exception were not confined" then "community-wide stigma inconsistent with the history and dynamics of civil rights laws" could result.<br />Where that line is on a cake might turn on whether the baker is refusing to add "words or images" or simply refusing to sell any cake, Kennedy suggested.<br />The case that may answer the bigger constitutional questions is a matter of speculation; however lower courts are dealing with their own cake casesas well as floral, calligraphy, graphic design, and photography cases.<br />Minnesota has its own case that could end up before the justices. A St. Cloud couple sued the MDHR because they wanted to add wedding services to their videography business but did not want to serve same-sex couples. Chief Judge John Tunheim dismissed the lawsuit, Telescope Media Group v. Lindsey, upholding the Minnesota Human Rights Act. The couple, with the help of the same organization that supported the Colorado baker, is appealing to the 8th Circuit.<br />Haller practices plaintiffs' employment law at Haller Kwan LLP in Minneapolis, and is a former Twin Cities television reporter.

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Publication:Minnesota Lawyer
Geographic Code:1U4MN
Date:Jun 7, 2018
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