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Masterpiece Cakeshop v. Colorado Civil Rights Commission was one of the year’s most anticipated U.S. Supreme Court cases. But yesterday’s ruling circumvented some of the key constitutional issues it was thought to address.
The 7–2 decision in favor of Lakewood baker Jack Phillips does not answer the big question of whether or not a business can refuse service to LGBTQ people based on an owner’s religious beliefs. Rather, the majority opinion faulted the Colorado Civil Rights Commission (CCRC) for being unnecessarily hostile to Phillips’ religious beliefs when considering the case.
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Here’s the backstory: Phillips, who owns Masterpiece Cakeshop, refused to create a wedding cake for Charlie Craig and Dave Mullins, a same-sex couple, in 2012, because he said it conflicted with his Christian beliefs. The couple filed a complaint with the CCRC, which sided with the couple and claimed that Phillips violated Colorado’s anti-discrimination law. Phillips appealed, and in 2015, the appellate court again ruled in favor of the couple. Phillips then petitioned the U.S. Supreme Court, which agreed to hear the case in late 2017.
What the Ruling Says
Masterpiece Cakeshop v. CCRC was the first SCOTUS ruling on LGBTQ rights since the landmark 2015 Obergefell v. Hodges decision, which legalized same-sex marriage nationwide. Monday’s ruling showed that the justices found that the CCRC lacked neutrality when deciding Phillips’ case, which is mandated by the Free Exercise clause in the First Amendment. During a public hearing in 2014, a Colorado civil rights commissioner described Phillips’ exercise of faith as “despicable” and compared his invocation of religious beliefs to past defenses of slavery and the Holocaust.
“The justices said it was clear that the CCRC targeted Phillips because of his religious beliefs,” explains Steven Collis, chair of the religious institution and First Amendment practice group at Denver law firm Holland & Hart LLP, and a professor of religious liberty law at the University of Denver. “They compared his religious beliefs to some of the worst atrocities in history. In the justices’ view, that showed a complete lack of respect and tolerance.”
The justices also weighed the fact that Colorado had not yet legalized same-sex marriage in 2012 (nor had the Supreme Court). They also noted that the CCRC ignored the fact that Phillips offered to sell the couple other baked goods, drawing the line at making a custom cake for a same-sex wedding. Another strike: The CCRC ruled in favor of bakers in similar cases who refused to make cakes with statements against same-sex marriage. “It signified to the justices that the commission was applying the law in a way that made it clear they had picked sides on this debate,” Collis says.
What the Ruling Doesn’t Say
The decision sidesteps the free speech question (whether a custom-made cake counts as speech) that has been at the center of the national debate, says Collis. While it affirms that both civil rights and the free exercise of religion are protected under the Constitution, the Supreme Court declined to weigh the harms to each side to provide guidance on similar pending cases.
“This decision does not give license to business owners to discriminate against members of the LGBTQ community,” says Rep. Leslie Herod, D-Denver, the first African American LGBTQ person elected to public office in Colorado and the prime sponsor of a bill to reauthorize the Civil Rights Division and Commission, which was signed by Gov. John Hickenlooper just last month. “Our Colorado laws protecting members of the LGBTQ community against discrimination are still in effect; the court merely ruled that the commission should have handled this particular case differently.”
A Swinging Pendulum
This is not the first time Colorado has landed at the forefront of a national debate on protecting LGBTQ rights. In 1992, Colorado was derided as the “Hate State” after voters approved Amendment 2—a measure that prohibited the government from protecting gay people against discrimination. The Supreme Court struck down Amendment 2 in a 1996 ruling that helped pave the way for the legalization of same-sex marriage in 2015.
It’s no coincidence that Justice Anthony Kennedy, a swing vote on LGBTQ rights, wrote the 1996 opinion and today’s ruling. “He has a view that both sides can and should be tolerant of one another—and neither side should use the government to force its beliefs on the other side,” Collis says. Twenty years ago, the religious right tried to force its views on the LGBTQ side, he adds. “This recent case in many respects represents the pendulum swinging the other way.”
A Colorado Compromise
Republicans in the Colorado General Assembly began pushing back on the CCRC’s perceived overreach at the start of the 2018 legislative session, with a heated debate over the commission’s reauthorization that lasted the entire year. State Sen. Bob Gardner (R-Colorado Springs) led the conservative effort to reform the commission. “The Court found that the very body charged with protecting the rights of our citizens acted with hostility toward those rights in the Masterpiece Cakeshop case,” he said in a statement. “During the legislative session, I struggled to restore balance to the Civil Rights Commission and ensure that it would not be captured by a viewpoint that favors one set of protected rights over another.”
Lawmakers ultimately passed a last-minute compromise to reauthorize the Civil Rights Division and Commission, changing how CCRC members are appointed to include more input from business owners and a balance between Republicans and Democrats. Collis says the Supreme Court’s ruling appears to encourage such compromise.
“I don’t think they wanted to further fan the flame,” Collis says. The question is whether Colorado’s legislative compromise—bolstered by Monday’s ruling—will move the pendulum enough to create a fair resolution in discrimination cases going forward.