June 5, 2018

Justice Kennedy Slices Cake Narrowly in Masterpiece Cake; but Justice Ginsburg is not Biting

Julie A. Werner-Simon Former federal prosecutor, constitutional historian, and professor at Drexel’s Kline School of Law, University of Southern California Gould School of Law, and Drexel’s LeBow School of Business

Just in time for June nuptials, the U.S. Supreme Court on Monday, June 4, 2018 issued the long-awaited decision in Masterpiece Cakeshop Ltd v. Colorado Civil Rights Commission. Justice Anthony Kennedy authored the 7-2 opinion, which reversed the finding of discrimination against baker Jack Phillips made by the Colorado Civil Rights Commission and the Colorado Court of Appeals. In a fractured and narrowly tailored 58-page decision, the court decided the case not on freedom of speech-what-is-art grounds, but on the free exercise clause of the First Amendment.  What stands out about the decision is how unsatisfying it is. It’s not the full meal expected after the December 5, 2017 oral argument when the justices sought to distinguish off-the-shelf cake from made-to-order confections, or the artistic merits of a made-at-the-table Mexican mole dish from that of any creation from any chef.  The decision is merely an amuse-bouche (those bite-sized hors-d'oeuvres) that does not rank as even an appetizer.

Kennedy’s narrow slicing in the Masterpiece Cake case is a win for the Colorado baker on procedural due process grounds but leaves to another day the question of what to do when the rights of religion and inclusion and fair treatment collide.

Kennedy reasoned that the Colorado Civil Rights Commission had treated baker Jack Phillips unfairly, by acting similarly to the municipal authority in the (well known to first year con law students) Florida animal slaughtering case, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-42 (1993).  There a Miami-adjacent city implemented a zoning law to deprive a religious minority of their use of animals, while permitting other religions and hunters, in the same township, to make free “use” of dead animal parts. Kennedy, while not finding that the Colorado Commission had passed anti-discrimination laws to target Christian-believing bakers, held that the Commission in implementing its anti-discrimination law showed “animus” to the baker’s belief.  Since [as Kennedy read the record below - - in a way disputed by others] one commissioner “went so far as to compare [the baker’s] invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust”  and no other commissioners disavowed those comments, and no one from Colorado  “expressed any concern with their content” and since the comments were not disavowed in Colorado’s briefs, the court concluded that there was doubt, of such a degree, “on the fairness and impartiality of the Commission’s adjudication.”

This, Kennedy reasoned, when coupled with the fact that the Colorado Commission permitted other bakers, to refuse on at least three occasions, “to discriminate” and to not make cakes with anti-gay messages, a different standard was applied to Phillips.  The behavior by Colorado “violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” The free exercise clause obliged the commission to be above even “subtle departures from neutrality” on matters of religion.

Kennedy was the empathetic baker to Phillips’ “dilemma.”  In 2012, when Phillips, declined to make the Colorado couple’s cake, gay marriage was illegal in Colorado and Colorado permitted “other storekeepers some latitude to decline to create specific messages.”

Kennedy, who authored the landmark gay rights decisions of Windsor and Obergefell (upholding right of gays to marry), did not “back-track” on the legal right of gays to marry.   Rather, on the first page of the decision he teed up the dueling “difficult questions” about both reconciling a government’s aim “to protect the rights and dignity” of gay people who face discrimination in access to “goods and services” and permitting all people “to exercise fundamental freedoms” of the First and Fourteenth Amendments. Kennedy did not reach the question of what to do when those rights conflict and left, for another day and another “future controversy” on “facts similar to these.”  The behavior of the Colorado authorities did not exhibit the necessary “religious neutrality,” and that alone violated the baker’s free exercise of religion

The narrowness of the opinion explains how Justices Stephen Breyer and Elena Kagan signed on to become the seven-member majority. At oral argument, it was Breyer who cautioned the parties about his concern with crafting a ruling which would not “undermine every civil rights law since [the beginning of time],” “including everybody who has been discriminated against in very basic things of life, food, design of furniture, home and buildings.”

No such rule was suggested by the Masterpiece opinion. Invalidated as of Monday, and as to Phillips alone, is the Colorado commission’s underlying order which required him to do three things: (i) to sell the same wares to all-comers (straight and gay); (ii) to educate the bakery staff about Colorado’s antidiscrimination law and (iii) to keep track of, and report to the commission for two years, the number of customers who were refused service. And no wedding service provider other than a member of the clergy was specifically exempted from “neutrally applied and generally applicable” antidiscrimination laws. For “if that exception were not confined, then 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.”

Kagan, joined by Breyer, wrote a concurrence in which she, with particularity, addressed the narrow procedural underpinnings of the ruling. She focused on the failure of the Colorado commission to be a neutral arbiter and the state could have better explained why it treated other bakers declining to make cakes differently from Phillips. Different outcomes as to the group of bakers “could” have been justified without a proceeding “infected with religious hostility or bias.”

Justices Clarence Thomas and Neil Gorsuch each wrote concurring opinions. Thomas thought the court should have addressed the baker’s free speech claim and that wedding cakes communicate a celebration of a marriage and that Phillips conduct was expressive. Thomas noted that he had warned in Obergefell that that decision would result in this day, where “religious liberty” would need to be vindicated. Gorsuch joined with part of Thomas’ 14-page opinion, Gorsuch took another 12 pages (in which Samuel Alito joined) to point out “the wrinkle” and limitations of the majority’s characterization of the baker’s plight and the commission’s failure.

And while Gorsuch characterized Phillips as someone who has “conclusively proven a First Amendment violation” in which for “almost six years” the baker faced “unlawful civil charges,” the dissenters, Justices Ruth Bader Ginsburg joined by Justice Sonia Sotomayor, did not see a lack of neutrality in the commission’s decision in distinguishing Phillips refusal with the refusal of other Colorado bakers to bake cakes for the man who ultimately filed an amici brief in the case by the name of “William Jack.” (News accounts identify Mr. Jack as a self-avowed Christian, mysteriously financed, who visited multiple Colorado bakeries after the Masterpiece Cake initial administrative ruling, insisting that the bakeries make him bible cakes with the words like “God hates sin” and “Homosexuality is detestable.” Jack then filed actions against the bakeries with the commission for varying reactions to the requests which included declinations and that of one baker who agreed to make the cake and give him an icing bag to decorate the cakes himself.)

Ginsburg’s dissent intimates that the majority was set up and being played by forces in the religious right. Specifically, Ginsburg notes that three months after the Colorado administrative law judge issued a ruling (one of the multiple levels of review by the Colorado authorities on the matter’s way up to the Colorado Court of Appeals) William Jack made his visits to other Colorado bakeries. Ginsburg said that the commission found no probable cause in support of William Jack’s claim of unequal treatment. As the commission noted, the Masterpiece gay couple requested no message on their cake and asked for a cake that was indistinguishable from any other cake that Phillips would have sold to others. Ginsburg argued that the cake-making requests “with which the Court aligns are hardly comparable” as all the bakers approached by Jack would have sold him any baked goods they would have sold anyone else.” She explained that Phillips’ refusal of the gay couple was “for no reason other than their sexual orientation [to deny them] a cake of the kind he regularly sold to others.” Ginsburg stressed that the majority’s emphasis on other baked goods Phillips sold to gay people was not relevant to the issue presented. Specifically, “that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.”

And as for the sentiments expressed by “one or two commissioners,” whatever one might think of the statements (in their “historical context” as providing examples of discrimination), such comments should “not be taken to overcome Phillips refusal” to sell the cake to the couple. Unlike the majority, Ginsburg referenced the “several layers of independent decision-making” referring to the review by the administrative law judge after an extensive hearing, the review by the Colorado commission, and the judicial review provided by the Colorado courts, including the Court of Appeals that reviewed the case de novo. Ginsburg noted that “the Commission was but one” of these multiples avenues of review.

She concluded her dissent an expression of puzzlement with the majority’s reliance on only one case as precedent, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). In Lukumi, a Florida city council made a law specifically to deprive a group of religious rights, and as Ginsburg noted, this case is “far removed” from those facts.

The decision in Masterpiece Cake resolves little except for the circumstances of the Colorado baker, who may now take the “next step” in a successful challenge to his state’s anti-discrimination laws.  This can include seeking legal fees from the state of Colorado as a “prevailing party” to the litigation. Such a request for legal fees is underway in California’s own cake case.  In Northern California’s Kern County, a California superior court judge this year exempted, on First Amendment grounds, a religiously minded baker’s refusal to make a wedding reception cake for a same-sex couple), the baker is now seeking from the state of California over $400,000 in legal fees as a “prevailing party” for having to defend against an administrative action. See, Department of Fair Employment and Housing v. Cathy’s Creation, Inc. dba Tastries, BCV-17-102855.

But the Colorado baker, Jack Phillips’ lawyers, Alliance Defending Freedom will be ready, for the next-as-yet-unidentified-case to which Justice Kennedy refers. Alliance well knows that there is no vetting process for one who claims to possess sincerely-held religious beliefs. The group’s fundraising material, which has in the past warned that the group will take action against those with an “anti-Christian agenda” or who advocate “homosexual behavior,” advertises that Alliance will take on cases in which believers have not been “able to freely live out their faith” in any aspect of society. Alliance provides free legal assistance to believers and, has media coaching available to get its “champions of liberty” ready for their close-ups.

One of Alliance’s representatives in 2014 likened Alliance’s support of those who refuse to serve gays to that of Rosa Parks refusing to take the back seat on the bus. Now that Masterpiece is decided, we will wait and see how long it takes for the next case to materialize, and whether Alliance’s “vision” of our nation will become a reality.

by Julie A. Werner-Simon, was a federal prosecutor, 1986-2015 and can be reached at jawsmedia.la@gmail.com

Equality and Liberty, LGBTQ Equality