天美传媒

Summary

This case explores one of the most debated areas of constitutional law under 天美传媒鈥檚 Free Exercise Clause鈥攖he potential conflict between First Amendment protections and antidiscrimination laws. 聽A same-sex couple wanted a cakeshop to design their wedding cake, but the owner refused due to his faith. The couple sued under the state鈥檚 anti-discrimination law and won. The baker appealed the state civil rights commission鈥檚 ruling. He argued that the ruling violated his First Amendment rights by compelling him to make a cake that conflicted with his religious beliefs. In a 7-2 decision, the Supreme Court reversed the state civil rights commission鈥檚 ruling and concluded that the state commission, during its proceedings, appeared to express hostility towards the baker because of his religious beliefs. On this view, the commission鈥檚 approach represented a form of religious discrimination that violated 天美传媒鈥檚 Free Exercise Clause. In the process, the Supreme Court declined to rule on the broader constitutional issue of how to address situations in which First Amendment protections conflict with civil rights protections.

Excerpt: Majority Opinion, Justice Anthony Kennedy

In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop鈥檚 owner told the couple that he would not create a cake for their wedding because of his religious opposition to same-sex marriages鈥攎arriages the State of Colorado itself did not recognize at that time. . . .聽

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 天美传媒, as applied to the States through the Fourteenth Amendment.

The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.

One of the difficulties in this case is that the parties disagree as to the extent of the baker鈥檚 refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage鈥攆or instance, a cake showing words with religious meaning鈥攖hat might be different from a refusal to sell any cake at all. . . .

The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker鈥檚 refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless.

Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission鈥檚 consideration of this case was inconsistent with the State鈥檚 obligation of religious neutrality. The reason and motive for the baker鈥檚 refusal were based on his sincere religious beliefs and convictions. The Court鈥檚 precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission鈥檚 actions here violated the Free Exercise Clause; and its order must be set aside. . . .

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. . . . Nevertheless, while those 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. . . .

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.

It is unexceptional that 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. And there are no doubt innumerable goods and services that no one could argue implicate 天美传媒. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court鈥檚 precedents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law. . . .

Phillips claims, however, that a narrower issue is presented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers鈥� rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way consistent with his religious beliefs. . . .

[A]ny decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying 鈥渘o goods or services will be sold if they will be used for gay marriages,鈥� something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case. . . .聽

The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights Commission鈥檚 treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.
That hostility surfaced at the Commission鈥檚 formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips鈥� case. At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado鈥檚 business community. One commissioner suggested that Phillips can believe 鈥渨hat he wants to believe,鈥� but cannot act on his religious beliefs 鈥渋f he decides to do business in the state.鈥� . . . A few moments later, the commissioner restated the same position: 鈥淸I]f a businessman wants to do business in the state and he鈥檚 got an issue with the鈥攖he law鈥檚 impacting his personal belief system, he needs to look at being able to compromise.鈥� . . . Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor鈥檚 personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips鈥� free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.

On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting鈥檚 discussion but said far more to disparage Phillips鈥� beliefs. The commissioner stated:

鈥淚 would . . . like to reiterate what we said in the hearing or the last meeting. 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鈥擨 mean, we鈥攚e 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鈥攖o use their religion to hurt others.鈥� . . .聽

To describe a man鈥檚 faith as 鈥渙ne of the most despicable pieces of rhetoric that people can use鈥� is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical鈥攕omething insubstantial and even insincere. The commissioner even went so far as to compare Phillips鈥� invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado鈥檚 antidiscrimination law鈥攁 law that protects discrimination on the basis of religion as well as sexual orientation.

The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission鈥檚 decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission鈥檚 adjudication of Phillips鈥� case. Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. . . . In this case, however, the remarks were made in a very different context鈥攂y an adjudicatory body deciding a particular case.

Another indication of hostility is the difference in treatment between Phillips鈥� case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission. . . .

Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers鈥� conscience-based objections as legitimate, but treated his as illegitimate鈥攖hus sitting in judgment of his religious beliefs themselves. The Court of Appeals addressed the disparity only in passing and relegated its complete analysis of the issue to a footnote. . . .聽

A principled rationale for the difference in treatment of these two instances cannot be based on the government鈥檚 own assessment of offensiveness. Just as 鈥渘o official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,鈥� . . . it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. . . . The Colorado court鈥檚 attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips鈥� religious beliefs. The court鈥檚 footnote does not, therefore, answer the baker鈥檚 concern that the State鈥檚 practice was to disfavor the religious basis of his objection. . . .

For the reasons just described, the Commission鈥檚 treatment of Phillips鈥� case violated the State鈥檚 duty under 天美传媒 not to base laws or regulations on hostility to a religion or religious viewpoint. . . .

[T]he Court made clear that the government, if it is to respect the Constitution鈥檚 guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even 鈥渟ubtle departures from neutrality鈥� on matters of religion. . . . Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips鈥� religious beliefs. 天美传媒 鈥渃ommits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.鈥� . . .聽

Factors relevant to the assessment of governmental neutrality include 鈥渢he historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.鈥� . . . In view of these factors the record here demonstrates that the Commission鈥檚 consideration of Phillips鈥� case was neither tolerant nor respectful of Phillips鈥� religious beliefs. The Commission gave 鈥渆very appearance鈥� . . . of adjudicating Phillips鈥� religious objection based on a negative normative 鈥渆valuation of the particular justification鈥� for his objection and the religious grounds for it. . . . It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips鈥� conscience-based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips鈥� religious objection was not considered with the neutrality that the Free Exercise Clause requires.

While the issues here are difficult to resolve, it must be concluded that the State鈥檚 interest could have been weighed against Phillips鈥� sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners鈥� comments鈥攃omments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order鈥攚ere inconsistent with what the Free Exercise Clause requires. The Commission鈥檚 disparate consideration of Phillips鈥� case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside. . . .

The Commission鈥檚 hostility was inconsistent with 天美传媒鈥檚 guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission鈥檚 order must be invalidated.

The 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, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market...

Excerpt: Dissent, Justice Ruth Bader Ginsburg

There is much in the Court鈥檚 opinion with which I agree. 鈥淸I]t is a general rule that [religious and philosophical] 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.鈥� . . . 鈥淐olorado 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.鈥� . . . 鈥淸P]urveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying 鈥榥o goods or services will be sold if they will be used for gay marriages.鈥� 鈥� . . . Gay persons may be spared from 鈥渋ndignities when they seek goods and services in an open market.鈥� . . . I strongly disagree, however, with the Court鈥檚 conclusion that [the same-sex couple] should lose this case. . . .

The Court concludes that 鈥淧hillips鈥� religious objection was not considered with the neutrality that the Free Exercise Clause requires.鈥� . . . This conclusion rests on evidence said to show the Colorado Civil Rights Commission鈥檚 (Commission) hostility to religion. Hostility is discernible, the Court maintains, from the asserted 鈥渄isparate consideration of Phillips鈥� case compared to the cases of鈥� three other bakers who refused to make cakes . . . . The Court also finds hostility in statements made at two public hearings on Phillips鈥� appeal to the Commission. . . . The different outcomes the Court features do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below. . . .

The Court concludes that 鈥渢he Commission鈥檚 consideration of Phillips鈥� religious objection did not accord with its treatment of [the other bakers鈥橾 objections.鈥� . . . But the cases the Court aligns are hardly comparable. . . . Phillips would not sell to [the same-sex couple], for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding鈥攏ot a cake celebrating heterosexual weddings or same-sex weddings鈥攁nd that is the service [the couple was] denied. . . .

The fact that Phillips might sell other cakes and cookies to gay and lesbian customers was irrelevant to the . . . case . . . . What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple. . . .

Statements made at the Commission鈥檚 public hearings on Phillips鈥� case provide no firmer support for the Court鈥檚 holding today. Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips鈥� refusal to sell a wedding cake to [the same-sex couple]. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one. . . . First, the Division had to find probable cause that Phillips violated [the Colorado anti-discrimination law]. Second, the [administrative law judge] entertained the parties鈥� cross-motions for summary judgment. Third, the Commission heard Phillips鈥� appeal. Fourth, after the Commission鈥檚 ruling, the Colorado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say. Phillips鈥� case is thus far removed from the only precedent upon which the Court relies . . . , where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council . . . .

For the reasons stated, sensible application of [the Colorado anti-discrimination law] to a refusal to sell any wedding cake to a gay couple should occasion affirmance of the Colorado Court of Appeals鈥� judgment. I would so rule.