A Judicial Masterpiece? US Supreme Court rules on ‘gay cake’ case — Robert Ward

6 June 2018 by Guest Contributor

This week the US Supreme Court handed down judgment in Masterpiece Cakeshop et al v Colorado Civil Rights Commission et al. This is a decision which is of interest in the UK for its factual similarity with the case of Lee v Ashers Baking Company, otherwise colloquially known as the “gay cake” case which is currently being considered by the UK Supreme Court (and which has been discussed previously on this blog).

In both cases Christian bakery owners refused to create certain cakes for customers on the basis that it would contravene their religious objection to gay marriage. The judgments in Masterpiece may foreshadow some of the arguments to be discussed in the upcoming UK decision.

In this case, the US Supreme Court held that the Colorado Civil Rights Commission failed to approach the matter in accordance with its obligation of religious neutrality. The baker’s appeal was therefore upheld — but only on technical grounds.

Background

The owner of Masterpiece, Jack Phillips, refused to create a wedding cake for a same-sex marriage ceremony between two of his potential customers, Charlie Craig and Dave Mullins. He did, however, say that he would be prepared to make birthday cakes or other products. His stated reason for refusing to make a wedding cake was that to do so would have been a personal endorsement and participation in a ceremony and relationship which contravened his deep and sincerely held religious beliefs.

The Colorado Anti-Discrimination Act (CADA) provided in relevant part that

it is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of … sexual orientation … the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

There is a special system for the resolution of claims under CADA. The Colorado Civil Rights Division  first investigates whether there is probable cause in the claim. If it so finds, then the claim is referred to the Colorado Civil Rights Commission (CCRC) who can decide to initiate a formal hearing before an administrative law judge. An appeal from the judge lies to a seven-member panel of the CCRC who vote on the outcome.

In the Masterpiece case, both the judge and the CCRC panel found that there was unlawful discrimination and this was upheld by the Colorado Court of Appeals.

Judgment of the Supreme Court

In a 7-2 majority verdict the court found in favour of Mr Phillips and set aside the decision of the Colorado appeal court.

Mr Phillips made two constitutional arguments under the First Amendment: (1) that the CADA, by requiring him to make a cake, would violate his freedom of speech by compelling him to send a message with which he disagreed and (2) that his free exercise of religious liberty had been compromised.

The leading judgment of Justice Kennedy bases the decision only on this second ground. The core reasoning of the decision is quite narrowly premised on the principle that the question of when free exercise of religion must yield to an otherwise valid exercise of state power needs to be determined in an adjudication without religious hostility on the part of the state being a factor. This is the state obligation of religious neutrality. The CCRC panel was found to have failed to approach Mr Phillips’ religious convictions with sufficient neutrality and indeed had shown “clear and impermissible hostility”.

There were two reasons in particular why the CCRC had demonstrated insufficient neutrality. First, difference in treatment of like cases. There had been instances where a customer called William Jack had approached various bakeries requesting cakes with anti-gay marriage messages and had been refused (“the Jack cases”).

In these cases the CCRC had said that to refuse to create such cakes was not discriminatory against the customer’s religious beliefs that gay marriage was wrong. The bakers were held to have acted lawfully in such instances. This was justified in part because those bakers were willing to sell other items to Christian purchasers. However, Mr Phillips’ contention that he would have sold other goods to Messrs Craig and Mullins was deemed irrelevant. In addition, the CCRC said of Mr Phillips’ case that the message or symbolism of his wedding cake would be attributed to the customer not to the baker whereas the CCRC did not address this argument in respect of the Jack cases.

The Colorado appeal court attempted to distinguish the cases on the basis that the bakers in the Jack cases could refuse to serve the customer owing to the offensive nature of the message requested. This was deemed by the Supreme Court to be an example of hostility towards Mr Phillips’ religious beliefs because it was purporting to decide that contravening his religious principles was not offensive and it was thereby denigrating those religious beliefs.

Secondly, the Supreme Court found that the contemporaneous comments of the commissioners demonstrated bias against Mr Phillips’ religious beliefs. For example, it was said by one commissioner that

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.

This was deemed to call into question the fairness and impartiality of the commission’s adjudication, both by its qualitative evaluation of religious belief as “despicable” and by its disparagement of that belief as mere “rhetoric”, suggesting that it was insubstantial or even insincere.

Thus, the core basis of the decision does not necessarily entail that Mr Phillips was acting lawfully. Rather, it is an objection to the way that the CCRC approached the issue by evaluating the quality of Mr Phillips’ religious beliefs and demonstrating bias against them.

Treating like cases alike

An interesting side point is whether the “like cases” discussed above can be distinguished even if the CCRC was applying the proper, neutral, approach. In a separate judgment, Justice Kagan (Justice Breyer concurring) argues that there is a ready distinction. They argue that, in the Jack cases, the bakers refused the request not because of the customer’s religious beliefs but because they would refuse any such request from any person whereas Mr Phillips would have made the exact same cake requested by Messrs Craig and Mullins if they were exchanged for a heterosexual couple. Thus, it was the sexual orientation of the customers that was the key component in Mr Phillips’ case.

A contrary view is presented by Justice Gorsuch (Justice Alito concurring). They argue that there can be no distinction because even in Mr Phillips’ case it is really the message conveyed by the cake rather than the identity of the customer that matters. Mr Phillips would refuse to make a cake for a gay wedding even if a heterosexual customer was buying it. Defining the product as just “a cake” rather than “a cake for a gay wedding” deliberately pitches the description of the product at a level of generality which secures a desired outcome.

The discussion on this point shares some similarity with arguments canvassed in Lee as to whether the Ashers Bakery engaged in direct discrimination by refusing to make a cake with the words “Support Gay Marriage” written on it. It was argued for the bakery in that case that any request for such a message would be refused whether it came from a gay person or otherwise therefore it could not be direct discrimination.

The Court of Appeal dismissed this argument by reference to the concept of “associative discrimination” (discussed more fully in the previous blog). This is essentially the idea that gay marriage has such an indissoluble association with a particular sexual orientation that cancelling the cake order because of the presence of the word “gay” was directly discriminatory regardless of the customer’s actual sexual orientation.

Conclusion

The essential reasoning in Masterpiece is a narrow ruling which ducks the question of whether Mr Phillips’ conduct was actually discriminatory. The more interesting general discussion of discrimination in this context is found in the opinions of Justice Gorsuch and Justice Kagan, a debate which has been resolved here by the Court of Appeal — for now — by reference to the concept of associative discrimination. We await the decision of the UK Supreme Court in Lee to see whether this reasoning stands.

Robert Ward will commence pupillage at Quadrant Chambers this autumn.