On June 4, 2018, the Supreme Court announced its decision in the potential landmark case, Masterpiece Cakeshop, Ltd, et al. v. Colorado Civil Rights Commission et al., No. 16-111. The central issue in Masterpiece—one that garnered much media attention and debate—was whether a bakery owner’s First Amendment right of free exercise of religion permitted his refusal to bake a wedding cake for a same-sex couple, or whether such refusal constituted sexual-orientation discrimination under Colorado’s anti-discrimination statute, CADA.
In finding for Masterpiece Cakeshop, the Court largely avoided the central constitutional question, instead finding error in the Colorado Civil Rights Commission’s handling of the claim. In sum, the Court reversed the Colorado Court of Appeals’ decision against Masterpiece Cakeshop on the ground that the Commission, in ruling for the same-sex couple, acted “inconsistent with the State’s obligation of religious neutrality.”
Writing for the majority, Justice Kennedy explained that the “Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion.” According to the Court, the Commission failed to fairly and impartially consider whether the baker’s constitutionally protected religious rights were valid grounds for his refusal. The Court pointed to specific disparaging statements by commissioners that, in the Court’s opinion, evidenced “hostility” towards the baker’s sincerely held religious beliefs. The Court also pointed to previous opinions by the Commission, which held that a business owners’ refusal to make goods for customers due to moral objections were not discriminatory, as further evidence that the Commission was neither tolerant nor respectful of the baker’s religious beliefs. Based upon this evidence, the Court concluded that the baker’s “religious objection was not considered with the neutrality that the Free Exercise Clause requires[,]” and thus reversal was necessary.
Justices Kagan and Gorsuch joined in the majority opinion, but wrote separate concurring opinions, joined by Justices Breyer and Alito, respectively. In the concurring opinions, the justices sharply debated the central issue of whether the bakery owner’s refusal was constitutionally protected or discriminatory, providing insight into the justices’ views on the ultimate question. Justice Thomas also concurred in the judgment, but wrote separately to address the baker’s free-speech claim.
Justices Ginsburg and Sotomayor dissented. In the dissent, the justices harshly criticized the majority’s findings of hostility by the Commission. According to Justice Ginsburg, the facts relied upon by the majority “do not evidence hostility to religion of the kind [the Court has] previously held to signal a free-exercise violation.” She went on to write that what matters in this case is that the bakery owner “would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.” Sensible application of the law, according to the dissenting justices, requires a finding that the baker’s refusal to sell the wedding cake to a gay couple was a violation of CADA.
What the Masterpiece decision (with its numerous opinions) signals is that the Court was unable to reach a clear consensus on the fundamental constitutional question, or, at the very least, was hesitant to decide such an issue on a 5-4 basis (the likely result), especially when another avenue for decision was available. The Court decided to wait until a different set of facts is presented which mandates resolution of the central issue, or until the Court is made up of different justices so that a larger majority may be attained before resolving the confluence of constitutional rights and discrimination statutes. As a result, the debate continues.
Here at Nichols Kaster, we believe in the equality of all individuals. Every day, we stand up for those who believe they were subjected to discrimination and we defend every person’s right to receive fair and equitable treatment under the law. If you believe you have been subjected to discrimination or your constitutional rights have been violated, contact us today. We are here to help you.The full opinion in Masterpiece Bakeshop is available here.
By Lucas Kaster, Associate Attorney