A Masterpiece of Judicial Avoidance?

Roman Friedrich

Ludwig Boltzmann Institute for Human Rights

 The U.S. Supreme Court’s blockbuster case Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. __ (2018) has been decided – unusually early (June 4) given the case’s supposed or initial importance. The two questions before the Court were the following:

1. Can a person, exercising religious beliefs, claim an exemption from anti-discrimination laws?
2. Can the Government, acting under an anti-discrimination statute, force a person to engage in speech that goes against this person’s religious belief?

The momentous legal questions, going to the heart of the interplay between anti-discrimination laws so fundamental in a country still riddled with large-scale disadvantaging of non-White citizens and the freedoms guaranteed by the First Amendment – freedom of speech and the free exercise of one’s religion – arose from the following facts:

In 2012, Mr. Phillips, owner of Masterpiece Cakeshop, professional baker and devout Christian, refused to sell a custom-made wedding cake to Charlie Craig and David Mullins. The couple planned to marry in Massachusetts, where same-sex marriage had already been legalized by 2012 and celebrate a big post-wedding bash in their Colorado home thereafter. Based on his deeply-held antipathy towards gay marriage based on his Christian faith, Mr. Phillips refused to sell the couple a custom-made cake. Phillips believes that decorating cakes is a form of art through which he can honor God and that it would displease God to create cakes for same-sex marriages. The couple sued and the Colorado Civil Rights Commission found Phillips in violation of the Colorado anti-discrimination law and ordered him to create custom wedding cakes celebrating same-sex marriages if he creates similar cakes for one-man-one-woman marriages, retrain his staff to do likewise, and report back to the Commission.

The case implicates both the First Amendment’s freedom of speech as well as its guarantee of free exercise of religion. During oral argument, the former appeared to be primarily on the Justices’ minds. To me, this was unsurprising given that, in my view, Mr. Phillips would face an uphill-battle claiming an exemption from his obligation to treat same-sex couples equally (avoiding discrimination based on sexual orientation), based on his Christian faith. The case falls squarely into the conflict between general laws and people’s individual faiths (or specific interpretations based thereupon) – a conflict the Court resolved decades ago, in Employment Div., Dep’t of Human Res. of Or. v. Smith. In this case, Justice Scalia held that the Free Exercise Clause does not grant exemptions from neutral and generally applicable laws, no matter how deeply-held a religious belief may be.

In my view, the freedom-of-speech argument is much stronger. If Phillips had convinced the Court under its own varied and complicated jurisprudence regarding what is “(pure) speech”, that creating a custom-made cake is indeed “speech”, victory would have been his. The Court has never accepted the Government forcing an individual to engage in speech he disagrees with, see Agency for Int’l Dev. v. Alliance for Open Soc. Int’l, Inc., 133 S. Ct. 2321, 2327 (2013).

It is, however, a basic First Amendment principle that ‘free­dom of speech prohibits the government from telling peo­ple what they must say’, not even in the context of LGBT rights. For example, in Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos  the court held that the Government could not mandate a LGBT group access to Boston’s St. Patrick’s Day Parade over the organisers’ objection. Hence, had Phillips succeeded to convince the Court that cake-baking is (his) speech, he would have had a strong case. Personally, however, I do not believe that there was “speech”: While a cake, in my view, may transport a message, it would have been clear that in this case, it was the couple that was speaking (to itself and its guests), not their baker, Mr. Phillips. Hence, there would be no speech whose protection Phillips could claim, but under the Court’s varied jurisprudence on “speech”, it would have hardly been surprising had the Court held otherwise. Anyway, in the end, the majority opinion does not cover the free speech argument at all.

Instead, the case has been resolved on much narrower grounds, leaving the questions presented unanswered. Justice Kennedy held “Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was incon­sistent with the State’s obligation of religious neutrality.” The holding, the opinion reveals at the outset, would basically be limited to this case. This is why: Justice Kennedy does not say that either the Commission or the courts below misapplied the law, but he took issue with the fact that there was “clear and impermissible hostility toward the sincere religious beliefs that motivated his objection”. This can be construed as a procedural problem, mainly based on the fact that one Commissioner told Phillips that “Freedom of religion and religion has been used to justify all kinds of discrimi­nation throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” While this phrase is, in my view, not inaccurate from a historical point of view, Kennedy found it wholly inappropriate in legal proceedings before a state agency. Accordingly, the decision was flawed and needed to be set aside. (Justice Ginsburg, dissenting, argued that one such remark could not be enough to reverse the decision made by a reviewing court.)

The big question, now, is this: What is next? While Kennedy’s opinion gathered six more votes, this question is where two of the concurrences (Justices Kagan and Gorsuch) disagree: Justice Kagan’s opinion seems to imply that the Commission, having the case on its desk again, could render exactly the same decision, omitting the demeaning remarks by individual Commissioners that the majority found demeaning. Justice Gorsuch however, disagrees, believing that the Commission’s decision was not only tainted by the open hostility it displayed, but that, in light of the Commission’s prior jurisprudence on bakers refusing to sell cakes, Phillips was treated unequally and unfairly. In his view, a hostility-free decision would not suffice.

The only thing that is sure, one can see, is that virtually nothing has become clear.

A closer look at the case, might reveal the Court’s recalcitrance to clarify the questions presented trough Masterpiece: After all, it is what Supreme Court experts call a “bad vehicle”, a case unsuited to rule on fundamental questions with implications on thousands of similar cases, millions of people. First, the record is not entirely clear (“the parties disagree as to the extent of the baker’s refusal to provide service.”) Second, the factual situation took place in 2012, when same-sex marriage was not possible in Colorado and most other U.S. States. Before Obergefell v. Hodges, it was not even clear whether a State must accept an out-of-State same-sex marriage. And third, of course, the record was tainted with anti-religion statements by one decision-maker that disquieted seven Justices. Given this, the Court’s decision does not stretch far beyond the factual (and unusual) circumstances of the case. A case expected to hand civil rights groups yet another victory in their fight for LGBT equality, was decided on grounds so narrow that they account for little more than error-correction (something that the U.S. Supreme Court is usually anxious to avoid). To spare the American legal community (and public) an opinion that says virtually nothing about the issues underneath the case, the Court, in my view, should have “DIGged” the case: Whenever the Court finds out that granting the writ of certiorari, even after careful consideration, was a bad idea (such as because there is a standing problem or the case has become moot), it dismisses the writ as improvidently granted (D-I-G). Even though the parties, having spent much ink on legal briefs and millions on those writing them, would not have cherished a non-decision by the Court, I, standing in Kennedy’s shoes, would have so ordered and waited for another case that presents a clean vehicle for these utterly important questions.

“The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to pro­tect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amend­ment, (…)”, Kennedy wrote. While the battle of law review articles and comments will certainly ensue, the Court’s opinion has not answered these “difficult questions”.

Roman Friedrich is an Austrian lawyer and works as a legislative assistant and human rights researcher at Ludwig Boltzmann Institute for Human Rights.