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The Supreme Court Punts on Cakes for Same-Sex Couples

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Instead, the decision is like that infamous cake “left out in the rain” in The Supreme Court has just issued its much-anticipated opinion in Masterpiece Cake Shop, Ltd. v. Colorado Civil Rights Commission. The outcome was expected to be closely divided, but the decision was a surprisingly lopsided 7-2 vote in favor of Jack Phillips, the baker who’d refused to create a cake for a same-sex couple. Yet, because of the very specific, not-likely-to-be-repeated basis on which Justice Anthony Kennedy resolved the case, it didn’t end being the blockbuster resolution of the LGBTQ rights/freedom of expression conflict most people were expecting. Instead, the decision is like that infamous cake “left out in the rain” in MacArthur Park – a shapeless thing that neither side will find appetizing. Yet there are pieces of Masterpiece Cake Shop that reward a close examination.

Let’s recap: In 2012, Charlie Craig and Dave Mullins visited Phillips’s shop in order to discuss a cake they wanted him to create for their upcoming wedding. Phillips refused, citing his religious beliefs against same-sex marriages (based on his understanding of Christianity). Because Colorado is one of about half of all states that protects against sexual orientation discrimination in places of public accommodation, the couple then filed a complaint with the state’s civil rights division. That body found probable cause that Phillips had discriminated (“on multiple occasions”), and therefore referred the decision to the Colorado Civil Rights Commission. The full commission determined that Phillips had indeed discriminated, and the Colorado Court of Appeals agreed. The Supreme Court then decided to take the case.

Most observers (including this one) assumed that the case would be decided based on the Supreme Court’s view of whether Phillips’s involvement in creating wedding cakes amounted to “expressive conduct,” and, if so, whether that expression was outweighed by the state’s strong interest in protecting sexual minorities from discrimination. And listening to the oral argument didn’t change that perception, as the justices engaged in what seemed an absurdist exercise in questioning whether hairstylists, make-up “artists,” chefs, and florists were engaging in expressive conduct worthy of First Amendment protection. Most did not think the freedom of religion argument was particularly strong. Colorado does not have a religious freedom act, so the Supreme Court’s rule in a 1990 case stands: A neutral law that is generally applicable is constitutionally sound even if the law ends up affecting the religious practices of any particular group, or person.

Yet there is another, much less often used, basis on which the justices have found that government is violating the guarantee of religious freedom. If the court finds that a law was enacted for the purpose of discriminating against a particular religion’s practices, the justices will give it the stink eye. A short colloquy between Justice Anthony Kennedy and Frederick Yarger, the Colorado solicitor general who was defending the state, was a tip-off that there might be something like that problem here. One of the commissioners, Kennedy noted, had said that using religion to justify discrimination was a “despicable piece of rhetoric” – and had compared the action to racism and the rise of the Nazis. “Suppose we thought there was a significant aspect of hostility to a religion in this case,” he wondered. “Could your judgment stand?”

That concern came home to roost in today’s decision. Justice Kennedy cited his own 1993 opinion for the Supreme Court in Church of the Lukumi Babalu Aye v. City of Hialeah. There, the court found that a law that prohibited “sacrificing” animals had been enacted specifically to discriminate against Cuban-Americans practicing the Santeria religion, which required such sacrifices. The timing of the law, as well as the definitions and exceptions it contained, convinced the justices that anti-Santeria animus, rather than legitimate public health goals, had propelled the law – and they unanimously struck down the measure. In Masterpiece Cakeshop, the seven justices in the majority extended logic of Hialeah beyond a legislative enactment to cover the bias of an administrative agency. As Chief Justice John Roberts suggested during oral argument, since the commission acts as a deliberative body, it was entirely possible that the anti-religious statements of one commissioner infected the decisions of others in the seven-member group.

By finding that the commission’s decision had been tainted in this way, the court was able to sidestep the tougher questions of whether Phillips had been engaging in protected expression, and whether that expression was important enough to justify discriminating against same-sex couples. But it’s going to be the rare case where a judge or other official decision-maker announces such an anti-religious point of view. Even relatively liberal justices Elena Kagan and Stephen Breyer concurred with the majority that the commission had “shown hostility” to religious views. So the case isn’t likely to have much of a direct impact on future litigation involving this still-bubbling conflict between the two imperatives of anti-discrimination and the freedom of expression. What it does, though, is buy time.

But the decision does makes a few things clear. First, as long as Justice Kennedy remains on the court (which may not be long, but who knows?), there will surely be no general safe harbor for businesses that want to deny services to gay and lesbian weddings. While he acknowledged the difficulty presented in cases (arguably) involving artistic expression, he worried that, if the court were to create any such exceptions to the general non-discrimination duty, they would need to be “confined, [lest] a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” Future cases, he noted, must be resolved without “subjecting gay persons to indignities when they seek good and services in an open market.” As any follower of the court – and of Kennedy – knows, “dignity” has been a lodestar for the justice for many years, so his concerns signal a wariness toward future claims of broad religious exemptions from anti-discrimination laws.

Whatever decision Kennedy makes about his future on the court, though, he won’t remain at its fulcrum forever. So the back-and-forth, rock-throwing concurrences between Justices Kagan and Gorsuch might presage a later dispute about how much protection the Jack Phillipses of the world should receive. For Kagan, there’s no such thing as a “gay wedding cake,” so the commission (were it free from anti-religious animus) could simply have found that Phillips violated the law by refusing to create the same sort of cake he’d create for anyone else – no matter the purpose to which it might ultimately be put. For Gorsuch, on the other hand, creating a cake intended for use in a same-sex wedding should be protected – even if such a cake would be identical to a cake for an analogous “straight” wedding, because of the significance attached to the creation.

There’s no predicting how cases like this one will ultimately turn out, especially since the Court is so divided. But Justice Kennedy’s decision buys time for the issues to get worked out further in the court of ultimate resort – public opinion and practice. In an earlier article for Politico, I suggested a different kind of compromise – allowing business owners to announce their views, but not to act on them – and I still think this would be a good way to draw down some heat from this touchy subject. Justice Kennedy has found another way, at least for the time being. In the end, though, everyone should be entitled to buy and sell goods and services on an equal footing.

The original story can be found here.


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