On Monday, the U.S. Supreme Court reversed a ruling of the Colorado Civil Rights Commission (the “Commission”) that a cake shop violated the state’s anti-discrimination act by refusing to bake a wedding cake for a same-sex couple for professed religious reasons. This case is the latest in a series of high-profile cases pitting the religious beliefs of business owners against the rights of LGBTQ customers.
The Court’s decision in favor of the cake shop’s devout Christian owner, Jack Phillips, may seem like a victory for those seeking exemptions from anti-discrimination laws based on a religious liberty argument. However, the scope of the decision is actually much narrower. While the Court technically found in favor of Mr. Phillips, it did not grant places of public accommodation (i.e. shops and stores) a free pass to discriminate against LGBTQ persons for religious reasons
In the 7-2 majority opinion authored by Justice Anthony Kennedy, the Court described Mr. Phillips’ religious beliefs as sincere, and found that the Commission expressed a “clear and impermissible hostility” towards those beliefs that was inconsistent with the First Amendment’s requirement that laws be applied in a religiously neutral manner. Among other examples, the Court cited an on-the-record statement by a commissioner 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.
The majority also noted several occasions where the Commission found that cake bakers lawfully refused to create cakes with religious texts that denigrated gay people and gay marriage, and concluded that this showed that the Commission was addressing these cases in an inconsistent manner. The Court concluded that the outcome of other similar cases “must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue prejudice to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
In a dissenting opinion, Justice Ruth Bader Ginsburg (joined by Justice Sonia Sotomayor) seemingly chided the majority for allowing “the comments of one or two Commissioners” to overcome a multi-layered decision-making process whose ultimate finding was consistent with Colorado state anti-discrimination laws. The dissent emphasized that Mr. Phillips refused to sell the couple a cake of the kind that he regularly sold to others (without special words or images), for no reason other than their sexual orientation. Based on that rationale, Justices Ginsburg and Sotomayor would have affirmed the judgment against the baker.
This latest decision discusses, in detail, the balancing act that courts have generally been faced with in religious liberty cases but artfully dodges a ruling on the central issue: if and when religious freedom can provide a legal basis to deny products and services to LGBTQ customers. Businesses, customers, and employees seeking more guidance on this issue will ultimately have to wait for a case with different facts to make its way through the courts. In the meantime, state and local anti-discrimination ordinances that prevent companies from discriminating against LGBTQ employees remain in place.
Businesses with questions about the impact of this decision on their policies and practices should contact counsel with experience in matters involving unlawful discrimination in employment and places of public accommodation.
A copy of the Supreme Court’s opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission can be found here.
Alexander V. Batoff focuses his practice on counseling clients on federal and state employment laws and regulations and defending them in litigation. He may be reached at 215-665-3048