Earlier this month the Supreme Court handed down a highly anticipated decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission that left many divided on what the holding meant going forward. The very ruling itself became the subject of debate and misinterpretation almost immediately as news outlets initially reported the decision as a sweeping victory for religious freedom (without reading the full opinion), while others criticized the ruling as “narrow” (without understanding what “narrow” means in the context of Supreme Court opinions).
What Did the Court Actually Decide?
As background, this case came to the Court from Colorado, where in 2012 Charlie Craig and Dave Mullins went to Masterpiece Cakeshop intent on ordering a wedding cake to celebrate their upcoming wedding (which was to be held in Massachusetts since Colorado did not recognize same-sex marriage at the time). Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, No. 16-111, slip op. (U.S. June 4, 2018). Jack Phillips, the owner and baker, informed the couple that he would sell them any other kind of cake, but he would not “create” a wedding cake for a same-sex wedding. Id. at 4. The next day Craig’s mother called the shop and Phillips explained that he would not create the cake because of his religious opposition to same-sex marriage. Id. In Phillips’ view creating a cake for a same-sex wedding would have been tantamount to endorsing the ceremony. Id. The couple filed a complaint with the Colorado Civil Rights Commission, which ordered Phillips “‘cease and desist from discriminating against… same-sex couples.'” Id. at 6, 8 (citation omitted; omission of text in original). Phillips contended, both before the Commission and the Colorado appellate court that making the cake would violate his “free exercise of religion.” Id. at 7-8.
Justice Kennedy, writing for the 7-2 Supreme Court majority, rested the decision, not on the First Amendment claim, but on the open hostility shown by the Colorado Civil Rights Commission to Phillips’ religious beliefs. One CCRC commissioner argued to Phillips that freedom of religion had been used to justify slavery and the holocaust. Id. at 13. The same commissioner referred to freedom of religion as a “despicable piece of rhetoric.” Id. Justice Kennedy wrote that the sentiment was inappropriate when considering the Commission is responsible for the “fair and neutral enforcement” of an anti-discrimination law that also protects against religious discrimination. Id. at 14. Ultimately, the Court held that the Commission’s “consideration of this case was inconsistent with the State’s obligation of religious neutrality.” Id. at 2.
Justice Kennedy did work to protect the underlying principles of Obergefell by writing, “while… religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Id. at 9. Furthermore, “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. Id. at 10. Justice Kennedy concluded that future cases should be resolved “without subjecting gay persons to indignities when they seek goods and services in an open market.” Id. at 18.
What Does This Mean for Businesses and Employers?
The reality of this holding is that not much has changed. Businesses and employers should be aware of and abide by anti-discrimination laws applicable in their state. Nothing in the ruling suggests that denying services to individuals based on their sexual orientation or gender identity is now acceptable. Nor does it suggest that a business can simply cite their religious beliefs as grounds for denying their services and automatically win in court. Justice Kennedy noted that any decision in favor of the baker must be constrained in order to prevent “purveyors of goods and services who object to gay marriages for moral and religious reasons [from] put[ting] up signs saying ‘no goods or services will be sold if they will be used for gay marriages.'” Id. at 12. Businesses should continue to strive to provide “equal access to goods and services,” if they wish to steer clear of controversy.
Employers should also be aware of their continued duty to respect each employee’s religious beliefs when that employee seeks an accommodation. If one thing is clear from this opinion, it is that courts will not look kindly upon those who denigrate the religious beliefs of individuals seeking an accommodation. Employers should look to federal and state laws to ensure they are providing the appropriate accommodations for their employees. Moreover, when approached about an accommodation, employers should ensure any evaluation process they may undertake is neutral and devoid of any bias or deprecation.
What Does the Future Hold on This Issue?
The Court disappointed many by not resolving the tension between anti-discrimination laws designed to protect the LGBTQ community, such as the Colorado Anti-Discrimination Act, and the First Amendment rights to free speech and exercise. The Court may have thought this case was not the right vehicle to address this tension and it was better to wait for a case with facts that would lend themselves more readily to the creation of a rule. During oral argument, the Court prodded Phillips’ counsel on where the line should be drawn on the question of compelled speech and free expression, offering hypotheticals for florists, hair stylists, makeup artists, tailors, architects, and more.
It is not clear when the Court will resolve the tension between anti-discrimination laws and the First Amendment. Justice Kennedy concluded his opinion by writing, “[t]he outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance.” Masterpiece Cakeshop, Ltd., slip op. at 18. Further elaboration may have to wait even longer, however, as the Court has not acted on a petition for certiorari in State v. Arlene’s Flowers, Inc., 187 Wash. 2d 804 (2017), which deals with the question of whether a florist’s refusal to create a custom floral arrangement for a same-sex wedding is artistic expression protected under the First Amendment. Arlene’s Flowers, Inc. v. Washington, petition for cert., p. i (U.S. July 14, 2017 (No. 17-108)).
What muddies the waters of this issue even further are the persistent rumors of Justice Kennedy’s potential announcement of retirement from the Court. Justice Kennedy has long been the swing vote on the Court and his retirement, along with the presumable appointment of a more conservative justice, would significantly change the calculus on this question. What is certain is that further clarity on this issue is not likely to be “finally” resolved any time soon.