Tolerance Is Most Meaningful When It’s Mutual – The Supreme Court Arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commissions

| January 10, 2018

The developing law concerning religious freedom and same sex marriage was argued before the United States Supreme Court on December 5, 2017 in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The case concerns Jack Phillips, a Colorado baker and the owner of Masterpiece Cakeshop, which he opened in 1993. In 2012, David Mullins and Charlie Craig, two gay men intending to get married, came into his bakery and asked him to design a cake for their wedding. Mr. Phillips declined, based on his Christian faith and his religious conviction that marriage was between a man and a woman.

Messrs. Mullins and Craig filed a complaint with the Colorado Civil Rights Commission, which ruled in their favor, based on the State’s law against discrimination based on sexual orientation. The Colorado Court of Appeals affirmed, ruling that Masterpiece Cakeshop is a place of public accommodation, and so could not refuse to design the cake for the wedding because of the sexual orientation of the customer. The Colorado Court also found that doing so did not require Mr. Phillips to “support or endorse any particular religious view.” The Supreme Court agreed to hear the case.

Since the decision in Obergefell v. Hogdes, in which the Supreme Court recognized the right of same-sex couples to marry, there has been a surge in cases where individuals’ strongly-held religious beliefs have come into conflict with the equal protections under the law afforded to same-sex couples. Business owners are greatly challenged in trying to provide the best service to their customers, maintaining their religious beliefs, and navigating an unsettled area of law – in addition to the social pressures. The legal questions are detailed, with answers that vary from State to State, or even by locality.

The attorney for Masterpiece Cakeshop and Solicitor General Noel Francisco (the United States Justice Department has sided with Masterpiece Cakeshop) first presented the case as based on First Amendment Freedom of Speech – arguing that a designed cake was artistic expression. That argument got no traction, and several justices were clearly having none of it. They quickly showed how the argument was more an exercise in legalese than in constitutional protections.

Justice Ginsburg asked about a cake in the shop window, forcing the attorney for Masterpiece Cakeshop to admit that “a pre-made cake, that is not compelled speech.” Justice Sotomayor asked about cupcakes. Justice Kagan was still more effective, asking who at the wedding who engaged in “artistic expression” and who was just selling product to the public. “The florist? The jeweler? … The Hair Stylist?” When the attorney conceded that the chef was just providing a service, Justice Kagan followed up with ““Woah – the baker is involved in speech, but the chef is not engaged in speech?”

Justice Sotomayor summarized the position of the Colorado Civil Rights Commission and Messrs. Mullin and Craig in her comments during argument: “We’ve always said in our public accommodations law we can’t change your private beliefs … but if you want to be a part of our community, of our civic community, there’s certain behavior, conduct you can’t engage in. And that includes not selling products that you sell to everyone else to people simply because of their either race, religion, national origin, gender, and in this case sexual orientation.”
The arguments turned much more in favor of Mr. Phillips when the issue turned to freedom of religion. There was no doubt but that his objection was based on his sincerely held religious beliefs, and the history of his bakery is consistent with that. He refuses to make cakes for Halloween. He sells cakes to gay clients for birthdays and other holidays, but not weddings.

Justice Roberts asked whether Catholic Legal Services would have to provide pro bono legal services for same sex marriages. Justice Alito noted that in 2012 same sex marriage was not legal in Colorado (this wedding was being held in Massachusetts): “This is very odd. … So if Craig and Mullins had gone to a state office and said we want a marriage license, they would not have been accommodated. If they said: Well, we want you to recognize our Massachusetts marriage, the state would say: No, we won’t accommodate that. Well, we want a civil union. Well, we won’t accommodate that either. And yet when he goes to this bake shop and he says I want a wedding cake, and the baker says, no, I won’t do it, in part because same-sex marriage was not allowed in Colorado at the time, he’s created a grave wrong. How does that all that fit together?”

As so often in cases of this type, everyone waited to see what Justice Kennedy would say. Justice Kennedy authored the opinion regarding same-sex marriage, and has long championed that cause. But he is also very protective of religious freedom. When he asked questions, his search for balance was very evident.

He was particularly concerned about a statement from the Colorado Commission (by Commissioner Hess) that “freedom of religion used to justify discrimination is a despicable piece of rhetoric.” He asked the attorney for Messrs. Mullins and Craig if the Commission disavowed or disapproved of that statement; and then pushed the attorney to disavow it.

Justice Breyer saw where Justice Kennedy’s questions were going and jumped in. In his view, public accommodation laws should (and often do) have exceptions for those with sincere religious beliefs. But Justice Breyer saw that balance as the job of the legislature – and since the Colorado legislature did not make an exception in its law for religious objections, the Court had to enforce the statute as it was written.
At oral argument, the justices often argue with one another by asking questions to the attorney. Justice Kennedy responded to Justice Breyer with the exchange that is central to the whole question:

JUSTICE KENNEDY: Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state [Colorado] in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.

MR. YARGER: And, Your Honor, I –¬

JUSTICE KENNEDY: And — because accommodation is, quite possible, we assume there were other shops that — other good bakery shops that were available.

Justice Kennedy’s questions go to the heart of the issue. They may not decide the legal outcome of this case, but they certainly are central to the societal debate. The plaintiffs have suffered no economic damages, and another baker actually baked a cake for them for free. But Mr. Phillips has now stopped making any wedding cakes at all so as not to be forced to offend his religious beliefs. He has lost 40% of his business and has reduced his staff from ten to four.

This case may be decided on a small procedural issue and sent back to Colorado for a new hearing; or it could be the platform for a major decision expanding or restricting religious freedom in business – either way requiring legal assessment and adjustment. But the issue will be decided in our society by the tolerance and respect that we show to one another; learning that just as we should make every effort not to give offense, we should also make every effort not to take offense.



Category: Law

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Email | Website | Thomas Schetelich is a founding principal in the law firm of Ferguson, Schetelich & Ballew in Baltimore, Maryland, and a member of the United States Supreme Court Bar. He heads both the firm’s corporate/ business law practice and its personal legal services department. He is an AV rated attorney awarded for highest standards of professional skill and ethical practice. Mr. Schetelich devotes much of his practice to assisting charitable and religious organizations, and is the President of The Christian Professional Network. He is a frequent speaker on Biblical and legal matters throughout the United States.