Discriminating on the Basis of Religious Belief: Limited Lessons for Governments and Businesses from Masterpiece Cakeshop

The US Supreme Court decided yesterday what Court watchers thought might be a landmark case deciding whether the rights to free exercise of religion and free speech trumped the rights of gays and lesbians to have access to regular commerce.  Instead, the Court largely put off those questions for another day.  The Court acknowledged, though, the gravity of the issues and the tension in fully vindicating the competing rights.  Although the Court’s narrow ruling in favor of a private business did not explicitly decide the biggest questions concerning competing claims of religious liberty and minority rights to be free from discrimination, the Court did provide important guidance about how those issues should be decided in the future.

A Baker Refuses to Make a Wedding Cake for a Gay Couple

In Colorado, a baker named Jack Phillips and his bakery, Masterpiece Cakeshop, refused to sell a gay couple a wedding cake for their wedding.   Phillips insisted that making the cake for the gay couple would violate his sincerely held religious beliefs.  The couple, Charlie Craig and Dave Mullins, complained they’d been illegally discriminated against, on the grounds of their sexual orientation, in violation of Colorado law prohibiting just that.  Craig and Mullins won their dispute with Masterpiece in Colorado state proceedings. Masterpiece appealed to the Supreme Court of the United States.

Masterpiece argued that its cakes were, essentially, artistic works. Phillips said that his cakes required his artistic efforts and, for that reason, he should not have to lend his expressive and creative efforts to a message, supporting gay marriage, that he did not believe. Craig and Mullins argued that they were refused a cake on the basis of their being gay – Masterpiece would’ve made a wedding cake for them if they had not been a gay couple. If Phillips’s sort of discrimination were permitted, they argued, that would make them second class citizens unable to access ordinary businesses and giving a license to all manner of businesses to discriminate against gays and lesbians even though Colorado law forbade that kind of discrimination.

Court watchers have waited for months to see how the Court would unravel these competing claims.  They waited in vain.  Yesterday, the Supreme Court said, for now, that those issues aren’t ready to be decided.

The Supreme Court, Mostly, Decides Not to Decide

Instead, the Court ruled in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission that Colorado officials had failed to decide the question in the fair and respectful manner the Constitution requires.  The Court found that the Colorado procedures betrayed hostility by state officials to Masterpiece’s religious views.  For that reason, the Court reversed the Colorado ruling.

This narrow holding, giving Masterpiece relief from a finding that it unlawfully discriminated, but not otherwise resolving the big religion versus equal protection for gays and lesbians question, is disappointing inasmuch as the country still lacks a clear answer on these big questions. Still, some lessons can be drawn for governmental actors and private businesses.

1. Government Officials Must Treat Religious Objectors Respectfully and Objectively.

At least some Colorado government officials made what the Court viewed as disparaging remarks about the religious views of Masterpiece’s owners. These included comments to the effect of it being wrong to use religious beliefs to seek an exemption from generally applicable laws and claims that religion had been wrongly used to justify injustices in the past.  In addition, according to the Justice Kennedy, in the past Colorado treated some other bakers’ refusals to make cakes that they thought were offensive differently than how Colorado treated Masterpiece’s similar refusal. Justice Kennedy, writing for a majority of the Court, took these statements to be evidence of Colorado’s failure to consider Masterpiece’s concerns objectively and respectfully.

Government officials who review a religiously motivated objection to a law should take care to treat the objection seriously and respectfully. Disparaging or condescending remarks may give rise to an inference of hostility to religion which might result in a court invalidating the governmental decision concerning the objection.

2. We Still Don’t Know, For Sure, if Bakers Can Refuse to Sell to Gays and Lesbians, But Generally, They Probably Cannot.

The Court took as given that “while religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”  In short, if a civil rights law prohibits discrimination against gays and lesbians or of another protected group, people must obey that law even if doing so would violate their religious beliefs.

Justice Kennedy reasoned that a minister whose religious beliefs opposed gay marriage may permissibly refuse to perform a gay wedding.  On the other hand, permitting every business which provides goods and services in weddings and marriages to also discriminate against gays and lesbians on the grounds of their religious objections would result “in a community-wide stigma inconsistent with the history and dynamics of civil rights laws… .”

There is little in Justice Kennedy’s majority opinion that suggests that Masterpiece would have won its appeal but for Colorado regulators’ disparaging comments about religion.  Of course, we don’t know what the Court would have decided in that hypothetical case.  But the Court’s opinion emphasized that laws of general application are, for the most part, binding even on citizens with sincere religious objections to those laws at least a matter of Constitutional law.  The Federal Religious Freedom Restoration Act, central to other Supreme Court religious liberty cases, did not apply to this Colorado case.

3. We Still Don’t Know if Artists Can Refuse a Commission to Create Art that Supports Gays and Lesbians, But That’s a Closer Question.

Masterpiece conceded in its argument before the Supreme Court that anti-discrimination laws could properly require Masterpiece to sell its typically prepared goods to gays and lesbians even if those were being used in a gay marriage that the company’s owners found objectionable for religious reasons. If, though, Masterpiece were required to use the owner’s “artistic skills to make an expressive statement,” tantamount to a “wedding endorsement in his own voice and his own creation,” that forced speech would violate Masterpiece’s First Amendment speech rights.

So is Masterpiece right? Is there a difference between an appetizing, but expression-neutral, cupcake, and an artistically expressive wedding cake? Justice Kennedy intimated and suggested there might be, but the Court never decided the question.  The record in the Supreme Court, somewhat unusually so for a case in the nation’s highest court, was unclear on this factual point.  Masterpiece said it objected to being forced to use its artistry for a gay wedding. Craig and Mullins said they were refused service before they even got to describe what they wanted to buy. Other evidence suggested the store had previously refused a sale of cupcakes to lesbians. The store’s online catalog shows at least some cakes that are ornate but have no written message on them. No doubt contributing to the Supreme Court’s determination not to decide this question was the uncertainty about what artistry was really at issue.

Where’s the line between a typical good or service, which a business must sell to all comers, and art, which a seller might refuse to create if making it offends her sincerely held religious beliefs? Masterpiece doesn’t answer the question.  Nevertheless, the Court seems to have erected signposts that signal that the more art and creativity and expression of a particular message or sentiment there is in a good or service, the more likely the maker will be to have the right to refuse to sell it if doing so would violate her religious principles.

The Court left certain decision of these questions for another day and for other courts to sort out. Those looking for a sweeping victory, in favor of either religious or free speech rights on the one hand or equal protection rights on the other, will be disappointed in Masterpiece. Its’ most clear teaching is that respectful tolerance of religious views isn’t just a hallmark of good government, it’s a Constitutional requirement. Less clear, but perhaps with a more important and longer term consequence, is the guidance that that, generally, laws that have a neutral purpose and apply to everyone will most likely apply even to those people who have a religious objection to the law.

The lower courts, and the Supreme Court, aren’t done wading in these cross currents of religion, speech, discrimination, and politics. Stay tuned.