Ruling Against Colorado, Supreme Court Sidesteps Civil and Religious Rights

Human Rights Campaign Flag being waved at the Supreme Court of the United States on December 5, 2017 in support of gay rights during the Cake Shop Religious Liberties/Gay Rights case.

Human Rights Campaign Flag being waved at the Supreme Court of the United States on December 5, 2017 in support of gay rights during the Cake Shop Religious Liberties/Gay Rights case.


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Instead, Masterpiece Cakeshop v. Colorado Civil Rights Commission provided state and local governments a lecture on fair governance.

In a 7-2 decision, the U.S. Supreme Court sided with a cake shop owner who refused to make a custom cake for a same-sex marriage. While Monday's ruling did not address many of the questions around religious liberty and gay rights that were at play with any finality, it made one thing clear: state and local governments must take their roles as impartial arbiters very seriously.

Writing for the majority, Justice Anthony Kennedy raised questions about the “fairness and impartiality” of the Colorado Civil Rights Commission. He explained, “the Commission’s treatment of the Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”

Before the decision, advocates from both conservative religious freedom organizations and gay civil rights groups heralded Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission as having the potential for being a major moment in the ongoing public debate about religious faith and discrimination based on sexual orientation. Neither got their wish. Instead, state and local governments got a lecture on objectivity in the face of the First Amendment from the Court’s majority—particularly when it comes to “the delicate question” of individual religious expression.

Colorado prohibits discrimination in public accommodations based on sexual orientation, including same-sex marriage. This means individuals must receive equal access to goods and services. The owner of Masterpiece Cakeshop, Jack Phillips, refused to make a custom wedding cake for a same-sex couple’s wedding, explaining his religious and artistic expression rights were being violated. Colorado Civil Rights Commission determined his refusal violated the Colorado Anti-Discrimination Act.

Kennedy and the majority of the court took exception to the Commission’s treatment of religious rights in the case, writing, “the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.”

In his decision, Kennedy points to language in the Commission’s formal public hearings as showing a lack of “due consideration” for Phillips' argument, stating the body was  “inappropriate and dismissive.” He takes particular exception to a commissioner’s statements on religion being used to justify slavery and the Holocaust. He notes the lack of any objection from others on the Commission to these comments he deemed as disparaging to further his point.

“The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection," Kennedy stated in his opinion. He pointed to other decisions by the state he saw as inconsistent, including three cases where the state considered the refusal of other bakers to create cakes with symbolism and messages opposing same-sex marriage.

Justice Ruth Bader Ginsburg, along with Justice Sonia Sotomayor, dissented. Ginsburg believed the evidence of “hostility to religion” did not rise to the level “previously held to signal a free-exercise violation.” In her dissent, Ginsburg stated the other three bakery-related cases were “hardly comparable.” In those cases, it was the language requested on the cake that the baker found offensive, rather than the religion or beliefs of the individual who asked for the cake.

Ginsburg also stated, “the comments by one or two members of one of the four decision making entities considering this case” does not justify the decision make by the majority.

What Comes Next For State and Local Governments

Kennedy acknowledged in his opinion for the majority that Supreme Court precedents “make clear” that the baker did not necessarily have a right to discriminate based on his religion. This means it is unlikely state or local laws barring discrimination will need to be changed based on the ruling.

According to an amicus brief filed by the State and Local Legal Center on behalf of the National League of Cities and International Municipal Lawyers Association supporting Colorado, over 100 local governments in 38 states have adopted ordinances protecting citizens from sexual-orientation discrimination in public accommodations. Twenty-two states have public accommodations laws on the books that prohibit discrimination based on sexual orientation; 19 prohibit discrimination based on gender identity.

Amanda Kellar, director of legal advocacy and an associate counsel at the International Municipal Lawyers Association, told Route Fifty the organization did not see this ruling as a setback.

“While this may not be a victory for local governments, we also don’t see this as a defeat for these anti-discrimination laws that state and local governments have enacted either,” Kellar said. “Local governments are still going to enact and enforce public accommodation laws that contain sexual orientation within the protected characteristics.”

While those laws are not impacted by the Court’s ruling, Lisa Soronen, executive director of the State and Local Legal Center, told Route Fifty, “it may be a warning [state and local governments] won’t always win challenges where religion objections are at stake because lower courts have been specifically instructed by the Supreme Court to take religious objections seriously.”   

Kellar believed the Supreme Court will likely leave this issue to the lower courts for some time before the issue of religious liberty versus sexual orientation discrimination rises back to the highest court. How lower courts deal with those rulings in the meantime, though, is less clear.

“The Court is clear about one thing and maybe only one thing—sincerely held religious objections when raised have to be given due considerations in these super-complicated disputes,” Soronen explained.

Mitch Herckis is Senior Editor and Director of Strategic Initiatives for Government Executive's Route Fifty and is based in Washington, D.C.

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