RPJ Attorney Ethan Krasnoo Discusses The Supreme Court’s Ruling Pitting Gay Rights Against Religious Freedom

In a 7 to 2 decision, the United States Supreme Court sided with baker Jack Phillips in finding that the Colorado Civil Rights Commission violated the Constitution’s protection of religious freedom when it found Phillips’ refusal to bake a wedding cake for a gay couple in 2012 to be against the Colorado Anti-Discrimination Act.  The Supreme Court focused its decision very narrowly in finding that the Civil Rights Commission acted with hostility towards religion, and the Court left open the possibility for different outcomes in similar cases that did not turn on a similar finding.  

The case arose when, in 2012, David Mullins and Charlie Craig asked Phillips to bake them a cake for their wedding reception to be held in Colorado.  Phillips refused to bake the cake, claiming that to do so would convey a message of support for same-sex marriage, which he was opposed to based on his religious beliefs.  In response, Mullins and Craig filed a complaint with Colorado’s Civil Rights Commission alleging that Phillips had violated the Colorado Anti-Discrimination Act (“CADA”), which prohibited discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.”  The Colorado Civil Rights Division addressed the claim in the first instance, and it found a likelihood that CADA had been violated, thus pushing the matter for evaluation by the Civil Rights Commission, which referred the matter to be decided by a state Administrative Law Judge.  Phillips claimed to the Judge that requiring him to make the cake would violate his First Amendment right to free speech, by compelling him to exercise his artistic talents to express a message with which he disagreed, and further by violating his right to freely exercise his religion.  The Judge found in favor of Mullins and Craig, as did, upon appeal, the Colorado Civil Rights Commission and the Colorado Court of Appeals.  They held that Phillips’ free speech rights had not been violated and that the cake would not be construed by viewers to convey that Phillips supported same-sex marriage, which he remained free to state he was opposed to in other settings. 

On appeal the Supreme Court was forced to wrestle with two competing principles:  (1) the authority of a State to protect the rights of LGBT persons who wish to be married and face discrimination in seeking goods or services; and (2) the right of all persons to exercise freedom of speech and free exercise of religion under the First Amendment.  Despite the case being mainly litigated in the lower courts on free speech grounds, the Supreme Court majority opinion barely touched on that claim.  The Court instead focused on whether making the cake would violate Phillips’ free exercise of religion and on the Colorado Commission’s application of CADA, which it found was not done neutrally with respect to religion.  

Specifically, the Supreme Court pointed out that at the same time the Colorado State Civil Rights Division sought to require Phillips to bake a cake for a gay wedding, in at least three separate cases it concluded that a baker had acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriage.  The Court also highlighted that commissioners of the Colorado Commission had made statements disparaging Phillips’ faith, and comparing his support for his religious beliefs to defenses to slavery and the Holocaust. This behavior cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. As a result the Court found that the Commission violated Colorado’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.  

At the same time the Supreme Court affirmed 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,” and that it is a general rule that religious and philosophical objections to gay marriage “do not allow business owners and other actors in the economy and in society to deny [LGBT persons] equal access to goods and services under a neutral and generally applicable public accommodations law.”  The Court left open the potential that the outcome of some future controversy involving similar facts where there was no religious hostility on the part of the State could turn out differently.

The dissenting opinion distinguished the facts surrounding the Commission’s findings with respect to the cakes bearing anti-gay sentiments and Phillips refusal to make a cake for Mullins and Craig.  Specifically, the dissent stated that the other bakeries refused to make cakes due to the demeaning messages requested and would have similarly refused to do so for any customer, whereas conversely Phillips refused to make a cake for Mullins and Craig because the customers were gay, but would have made the cake for heterosexual customers.  The dissenting opinion also found that the few comments from select Commissioners should not be enough to support the majority opinion, especially where independent proceedings were held by various government bodies, including the Court of Appeals.

The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111. Click here for the opinion.

This article is intended only as a general discussion of these issues.  It is not considered to be legal advice or relied upon. For more information, please contact RPJ Attorney Ethan Krasnoo, who counsels clients on employment (including discrimination, sexual harassment, and contracts), entertainment and media, First Amendment and data privacy matters. Mr. Krasnoo is admitted to practice in New York State, the U.S. District Courts for the Southern and Eastern Districts of New York, the U.S. Court of Appeals for the Second Circuit, and U.S. Tax Court.  Attorney Advertising.