One of the most contentious cases of the Supreme Court’s term has been Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which the Court handed down last week. As we wrote last fall, the lawsuit held the potential to decide whether Colorado’s public accommodations law—which prohibits covered persons from withholding goods, services, or facilities from an individual or group based on, among other things, sexual orientation—violates the First Amendment’s ban on compelled speech when the statute is applied against someone who refuses to create custom wedding cakes for same-sex wedding celebrations because doing so would violate the baker’s sincerely held religious beliefs.
The petitioner, Mr. Phillips, who owns and operates Masterpiece Cakeshop, Ltd., declined in 2012 to create a wedding cake for a gay couple (even though he offered to sell them other baked goods) because creating a wedding cake for a same-sex wedding would conflict with his religious beliefs. When Colorado authorities filed a complaint against him under state anti-discrimination laws, he responded by invoking his rights under the both freedom of speech and freedom of religion clauses of the First Amendment. His claims were rejected by Colorado administrative and judicial tribunals, and he then sought and obtained review in the US Supreme Court.
A majority of the Court, for whom Justice Anthony Kennedy wrote, found it unnecessary to resolve the free speech claim because, on the facts of the case, the Colorado authorities demonstrated hostility towards religion in the way they handled Mr. Phillips’ claim for a conscience-based exemption. And while under current doctrine government need not accommodate religion by exempting religiously based conduct from generally applicable laws, government cannot discriminate against religion and religious persons by disrespecting them in adjudicatory processes. In the space below, we offer some big-picture observations on the approach set forth in Justice Kennedy’s majority opinion.
It’s Civility and Equal Respect, Stupid
Although the majority opinion raises interesting doctrinal questions, some of which we address below, what may be most memorable and important in this opinion is not the analytic moves it makes, but the tone it employs and the message about respect, civility, and dignity it tries to send. At their best, Justice Kennedy’s writings rise above technical legal doctrine. He recognizes that the Constitution has to be interpreted to reflect the nature and values of the national community the document seeks to knit together. And sometimes the Constitution calls to us—to We the People—to remind us of what is best in our national character, and of the difficulties we encounter when we lose sight of our core commitments and succumb to factional divisions fueled by the passions of the moment.
Justice Kennedy’s opinion in an earlier LGB rights case from 1996, Romer v. Evans, was perhaps his best example of this kind of constitutional exhortation. In Romer, Colorado had adopted an initiative that singled out the LGB community for almost limitless discriminatory treatment based directly on their status, in effect creating a pariah class that could be denied any semblance of equal civil standing under law. Justice Kennedy mapped various factors that he said justified his conclusion that this Colorado initiative violated the Equal Protection Clause. But the power of his Romer opinion was grounded on something more fundamental. In this country, Justice Kennedy explained, under our Constitution, we just don’t do things like this. We don’t create a class of outcasts preemptively precluded from seeking the protection of the law. The Constitution demands more from us than laws like this one.
We recognize that Justice Kennedy’s opinion in the Masterpiece Cakeshop case is softer and more balanced than his opinion in Romer. In Masterpiece Cakeshop, what Colorado (the same state involved in Romer, by the way) had done seems less egregious than the creation of a pariah class. But once again, the foundation of Justice Kennedy’s opinion is the demand that the state, here in its administrative and adjudicatory capacities, live up to constitutional expectations of what is acceptable process.
Kennedy begins his narrative by describing with compassion the predicament in which Mr. Phillips found himself in this dispute. At the time of his alleged violation of the state’s civil rights statute, Colorado did not recognize same-sex marriages as a matter of state law, and the United States Supreme Court had said nothing to suggest that limiting marriage to a man and a woman was unconstitutional. Further, there were state law decisions upholding the right of bakers to refuse to sell cakes containing messages demeaning gay persons or same-sex marriage. From Mr. Phillips’ perspective, his refusal to create a cake for a same-sex wedding seemed similarly within the discretion of the baker, and his disinclination to recognize the legitimacy of same-sex weddings as a matter of religious conviction appeared to be no more discriminatory than the state’s refusal to recognize such weddings as a matter of law. For people like Mr. Phillips, precisely what Colorado law required of him seemed murky.
To be sure, Mr. Phillips’ dilemma did not necessarily mean the state had to grant him the exemption he sought based on his beliefs. Justice Kennedy emphatically recognizes the importance of the state’s interest in protecting the civil and equality rights of gays and same-sex couples. What the Constitution demands from Colorado is not deference to Mr. Phillips’ interests but respect for his situation. And here, Justice Kennedy argues, the state failed to provide a neutral and respectful evaluation of Mr. Phillips’ claims. Instead, Justice Kennedy explained, the language used by two commissioners in the administrative/adjudicative tribunal ruling against Mr. Phillips, without a hint of disavowal by other commissioners, and to a lesser extent the language used by the state court of appeals decision upholding the commission’s order, demonstrated hostility and animus toward Mr. Phillips’ religious beliefs. Decisions openly grounded in invidious motives by some commissioners that went unchallenged by others just wasn’t good enough. The Constitution demands more of us.
When we read commentary on the Masterpiece Cakeshop ruling talking about who won or lost this case, we think many analysts may have missed the key point of Justice Kennedy’s opinion. His core message here is that the resolution of these disputes should be not so much about winning or losing. It should be about a considerate understanding of the people whose identities place them on one side or the other of these conflicts, and a respectful evaluation of the costs one side or the other will incur when the cases are resolved. It is as much about how we can live together as a people after a decision is reached as it is about how a particular dispute should be decided. Justice Kennedy understands that for our communities to move forward, the people on the “losing” side of these conflicts must feel that their needs, fears, and concerns have been recognized and assessed respectfully, even if they are ultimately found to be outweighed by competing considerations. Colorado’s failure to do that rendered its application of state civil rights law to the baker in this case unacceptable and invalid.
The Relevance of Other Baker Cases in Colorado
As a doctrinal matter, several issues in the majority and concurring opinions merit discussion, but because of space constraints, we will discuss only two of them. The first involves the Court’s discussion of several prior Civil Rights Commission decisions (the so-called Jack cases) in Colorado where the commission concluded that bakers did not violate the state’s anti-discrimination statutes when they refused to create cakes displaying religiously inspired anti-gay messages sought by a customer (William Jack). The Court explained that the state commission and courts did not respectfully and persuasively distinguish these decisions from the claim against Mr. Philips for his refusal to create a cake for a same-sex wedding, with the resulting implication being that Mr. Jack was treated less favorably than the customers in Mr. Phillips’ case because Colorado in effect doesn’t take religious discrimination as seriously as discrimination based on sexual orientation, even though both are supposed to be prohibited under state law.
We fully appreciate the Court’s insistence that state decisions must demonstrate that the distinctions they draw in these cases are free from any hint of bias or animus. We also recognize that the line to be drawn in this arena can sometimes be difficult to discern. Particularly when religion is at issue, speech, conscience, and identity overlap and can be difficult to disentangle.
Notwithstanding that difficulty, however, we think it is important to recognize that there is a persuasive distinction—entirely free of animus or hostility toward religion—that could have been invoked by Colorado (but which apparently was not done so clearly), between a state’s decision holding that bakers do not violate state civil rights laws when they refuse to create a cake displaying an anti-gay message, on the one hand, and the state’s decision that a baker does violate civil rights laws by refusing to create a wedding cake for a same-sex couple’s wedding, on the other.
Colorado’s civil rights law is typical in that it does not prohibit all kinds of discrimination, but only discriminatory actions based on certain aspects of personal identity. Under the statute, places of public accommodation cannot discriminate, directly or indirectly, against people because of who they are—because of their membership in a class defined by gender, religion, race, or sexual orientation. The refusal to provide goods or services to a same-sex wedding constitutes prohibited sexual orientation or gender-based discrimination (just as refusal to provide goods or services for an interracial wedding is considered discrimination on the basis of race). Discrimination against same-sex weddings violates state law because it constitutes differential treatment based on the sexual orientation (or gender identity) of the marital partners. If the wedding weren’t a same-sex event (or, put another way, if the gender identity of either of the two participants were changed), Mr. Phillips would have created the requested wedding cake.
By contrast, Colorado’s statute does not and need not prohibit discrimination against a customer based on the message that the customer wants a provider of goods and services to assist him in communicating. The refusal to provide a good displaying a requested message is not, by itself, discrimination on account of the identity of the customer or client. Thus, such refusals to provide goods or services based on speech are not prohibited by civil rights laws; in the Jack cases, for example, the bakers refused to provide cakes containing Mr. Jack’s message because of the content of the message without regard to his religious identity or motivation, and, accordingly, their refusal did not violate the Colorado statute.
Justice Gorsuch’s separate opinion seeks to dissolve this distinction by pointing out that a baker like Mr. Phillips who is religiously opposed to same-sex marriage would refuse to create a wedding cake for a same-sex marriage even if the customer who ordered the cake was not gay (say, the parent of one of the gay marital partners). Relatedly, Justice Gorsuch observes that bakers like Mr. Phillips will create a cake for anyone, regardless of their sexual orientation, as long as the cake would not be used in a same-sex wedding celebration. In this sense, Justice Gorsuch argues, bakers like Mr. Phillips are no different from the bakers who refused to sell to Mr. Jack; if those bakers weren’t discriminating against Mr. Jack because of his religion, but instead on account of his proposed message, bakers like Mr. Phillips are not discriminating against gays or lesbians because of their gender or sexual orientation, but instead on account of the message a same-sex wedding cake inherently communicates.
Justice Gorsuch’s argument is elegant, but even assuming he is right that a wedding cake for a same-sex wedding inherently involves communication of a message, he is wrong, we think, as to his bottom line that there is no principled difference under Colorado’s civil rights law between the bakers’ refusal to provide Mr. Jack cakes and Mr. Phillips’ refusal to create same-sex wedding cakes. Part of Justice Gorsuch’s mistake is his erroneous premise that civil rights laws like Colorado’s focus solely on the identity of the most immediate customer or client—that discrimination based on the identity of second-order users of products is somehow unregulated. That cannot be the case. No one would think, for example, that under most anti-discrimination laws a car manufacturer could agree to sell vehicles to owners of auto dealerships of any race or gender as long as the dealers agreed never to sell cars to African Americans or to women. Similarly, a florist’s willingness to sell floral arrangements to people of any and all faiths as long as the arrangements will not be used by Jewish families at life-cycle events certainly constitutes discrimination on the basis of religion.
Indeed, and importantly, the text of the Colorado statute in question is very broad in this regard—something neither Justice Gorsuch nor Justice Kagan (who responds to him in a separate writing on this issue) adequately addresses. The Colorado statute provides that it is an unlawful “discriminatory practice . . . for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of [various] goods and services . . .”(emphasis added). The prohibition isn’t limited to or even focused on any particular immediate customer (hence the “directly or indirectly” and “full and equal enjoyment” wording). More fundamentally, its language focuses on the general mindset of the service provider, not the mindset with respect to any particular immediate or downstream consumer. The “because of” wording means that if a service provider has anyone’s identity, be it any person’s race, gender, religious creed, sexual orientation, etc., on his mind as a basis for refusing service, he is violating the statute. (Notice here that the “because of” language is not limited by any subsequent reference to any particular customer or person.) And, in the case at hand, Mr. Phillips undeniably had the gender or sexual orientation identity of particular wedding celebrants on his mind when he decided for whom he would create a wedding cake; as noted earlier, if the gender or sexual orientation of the wedding participants were different, he would have created the requested wedding cake. By contrast, the bakers in the Jack cases who turned down Mr. Jack did not have anyone’s religious creed, disability, race, color, sex, sexual orientation, marital status, national origin, or ancestry on their minds at all; what moved them to turn down business had nothing to do with the religious or other demographic characteristics of the person who sought to buy or to use the cake. The motivation for the anti-gay message which provoked their refusal to provide services could have come from religion, as it may have for Mr. Jack, but the religious identity or motivations of anyone who would enjoy the benefits of the cake was irrelevant to the bakers’ decisions.
It might be true, as Justice Gorsuch suggests, that there exists a correlation between certain religious beliefs and certain anti-gay messages sought on cakes, and that some bakers may or should know that an anti-gay message often has religious underpinnings. But none of that bears on the mindset of the bakers themselves, much less proves that the bakers cared about Mr. Jack’s religious identity or motivation when they refused service. As a result, there is no basis for thinking the bakers in the Jack cases were discriminating “because of” anyone’s religion.
The key point is this: Mr. Phillips’ aversion to the message sent by creating any same-sex wedding cake necessarily and inherently runs through the sexual identity/characteristics of the end users in a way that the Jack bakers’ aversion to Mr. Jack’s anti-gay messages does not necessarily or inherently run through anyone’s religious identity. As Justice Kagan pointed out, Mr. Phillips cannot claim he discriminates against gay marriages but not gays any more than the barbeque vendor in an earlier case decided by the Court could claim he was discriminating against the idea of racial equality—but not discriminating against racial minorities—when he refused to sell to blacks. To embrace the argument Justice Gorsuch advances would be to dilute the force and effect of anti-discrimination law generally and open the door to allowing a great deal of what we now all agree is impermissible race- and gender-based discrimination. For that reason, Colorado could have reached the results it reached without disfavoring religion or religious liberty/equality at all.
None of this is to say that extending anti-discrimination laws to small, personal businesses with no possibility of religious accommodations is always a good idea (and remember, too, that the Court didn’t address the compelled speech claim). But on the narrow yet important issue of whether Colorado, under its own statute, could permissibly have distinguished Mr. Phillips’ refusal to create a cake from the actions of the bakers who turned away Mr. Jack’s religiously inspired anti-gay messages, Justice Kagan’s bottom line is the right one.
How Important Are Insensitive and Intemperate Statements by Officials?
A second important doctrinal issue relates to the Court’s reliance on allegedly invidious comments by two commissioners. Generally speaking, the Court has not been particularly receptive to striking down laws or administrative decisions because the government’s conduct was based on the impermissible motives of decisionmakers. Indeed, in one famous 1968 case, United States v. O’Brien, involving the burning of a draft card, the Court said an otherwise valid law will not be struck down under the First Amendment solely because it was enacted for the purpose of suppressing speech. Further, in Church of the Lukumi Babalu Aye v. Hialeah in 1993, Justice Kennedy opined that a Hialeah, Florida, ordinance prohibiting the ritual sacrifice of animals violated the free exercise rights of adherents of the Santeria faith in part because the city acted out of religious animus, but only one other member of the Court joined this part of his opinion. There seemed little sympathy among the other justices for claims based on illicit motives.
The primary exception to this reluctance to invalidate state action on the basis of the decisionmaker’s motive involves equal protection challenges to facially neutral laws or administrative decisions that implicate race or gender disparity. Here, if plaintiffs can demonstrate that invidious beliefs were material to the adoption of a facially neutral state decision that disproportionately burdens racial minorities or women, the decision will be invalidated. However, as the Court explained in the 1977 Arlington Heights v. Metropolitan Housing Development Corp. case, if the government defendant can prove by way of rebuttal that it would have reached the same decision even if the invidious motive had not been present, then the challenged decision will be upheld.
Thus, the Court’s focus on the motives of the commissioners in the Masterpiece Cakeshop case appears to be pretty unusual. The majority suggests that the invidious motive here was particularly troubling because it was displayed in an adjudicatory setting (which may be something some justices lean on if they try to distinguish this case from President Trump’s anti-Muslim rhetoric concerning some iterations of the so-called travel bans), but that distinction has never been identified as critical in earlier cases. Land use decisions such as the denial of the rezoning petition in Arlington Heights were often characterized as quasi-adjudicatory in nature, yet the Court did not demonstrate any greater receptivity to a motive argument in that case.
The Court’s new willingness to take evidence of invidious motive into account is not the only departure from accepted doctrine concerning improper motive in Masterpiece Cakeshop. The emphasis on the failure of Colorado officials or lawyers to disavow religiously hostile statements made by other officials (something else that may be used to distinguish the travel-ban case) is also something that we haven’t seen stressed in prior prominent cases involving impermissible motive. And, as we noted above, even in equal protection cases in which the Court had demonstrated a willingness to accept proof of invidious motives as the basis for invalidating state action, the state defendant could rebut the invalidating effect of plaintiff’s evidence by demonstrating that it would have reached the same decision in any case. Yet in Masterpiece Cakeshop, the state is not provided any opportunity to offer such a rebuttal on remand. Instead, the state’s decision against the baker is reversed out of hand.
We would hesitate to conclude on the basis of this decision alone that the Court is signaling more generally a new receptivity to constitutional challenges based on impermissible motive. Yet it bears saying that many key cases denigrating motive analysis, such as O’Brien and Arlington Heights, are forty years old and have not been seriously reexamined for decades. Serious criticisms have been directed at the Court’s motive decisions over the decades. There may be something to be said for a reevaluation by the current Court of questions relating to the constitutionality of state action grounded in the impermissible motives of decisionmakers.