I knew when I posted a summary of what cases were left for the term, that there were good chances that the Supreme Court would issue a “stop the presses” opinion today that would be difficult to explain, given how many major cases were left and that several of them had some weird procedural issues. Well today, we got one of those opinions that everybody was waiting for, and it turned out to be a big dud that ultimately decided nothing other than the individual case.
Masterpiece Cake was one of those cases that seemed to be major. Earlier this decade, as states began to recognize the right to same-sex marriage and to expand civil rights laws to cover sexual orientation, fundamentalist public interest groups have been seeking to push cases to allow true believers to exempt themselves from generally applicable laws, primarily related to same sex marriage but also to contraception and “morning after” pills. And eventually, they managed to get the United Supreme Court to accept Masterpiece Cake as the test case for this issue. The basic issue as presented by the parties was whether the Free Exercise Clause or the Free Speech Clause of the First Amendment allows a seller of expressive products to refuse — based on their religious or political beliefs that homosexuality is morally wrong — to provide a product to a same sex couple. In this case, the product was a cake for a reception celebrating a same sex marriage. While there was nothing on the cake that expressly endorsed same-sex marriage, the claim was that merely providing the product effectively signaled an endorsement of the marriage.
A problem, however, developed during oral argument. In Colorado, the initial stage of a civil rights case is a hearing before an administrative body — the Colorado Civil Rights Commission. During that hearing, one of the members of the Commission committed a gaffe. In addressing the assertion that the baker should be allowed to discriminate based on a sincere religious belief, one of the commissioners noted that religion had been used to support slavery and the Holocaust. This statement met all of the classical definitions of a gaffe: it revealed what the speaker truly thought; as a factual assertion, it was technically defensible (as religion has been used, and conservative are willing to admit is still true in the case of some Muslims, to support horrendously evil acts); and it is not something that is acceptable to say. In terms of this case, however, it supported the proposition that the baker did not receive a fair hearing on the issue of whether he should receive some type of exemption from civil rights law based on his religious belief because, at least one member of the Commission, believed that religious beliefs are entitled to no wait whatsoever.
At the end of oral argument, two things were clear. First, Justice Kennedy — ever the swing vote — wanted a solution that both respected the rights of the same sex couple while not denigrating religious beliefs. Second, Justice Kennedy had major problems with what the commissioner said during the hearing. When the Supreme Court issued its opinion, it was written by Justice Kennedy and, surprise surprise, he managed to focus on the “improper” comments of the commissioners while including face-saving language for both sides that gave only minimal guidance for what lower courts should do in similar cases that are currently pending.
While technically, the vote was 7-2 for the result and six of the seven justices in the majority joined Justice Kennedy’s opinion, when you consider the other opinions, the vote was actually 2-2-3-2. The core two was Justice Kennedy along with Chief Justice Roberts who did not join any other opinion. The second two was a concurring opinion written by Justice Kagan for herself and Justice Breyer. The three was Justice Alito, Justice Gorsuch, and Justice Thomas (who did not join the opinion of the majority) with a concurring opinion written by Justice Gorsuch for himself and Justice Alito and an opinion concurring in part and concurring in the judgment written by Justice Thomas for himself and Justice Gorsuch. Finally, there was a dissent written by Justice Ginsburg for herself and Justice Sotomayor.
The majority opinion by Justice Kennedy noted that generally applicable laws might defeat any Free Exercise claim but found that the expressed bias of the commissioners hearing the case violated the baker’s due process rights. In particular, the opinion found that Colorado certainly has the authority to include sexual orientation within the civil rights laws and that, in the absence of a valid claim for exemption, to require individuals to provide goods and services to the LGBT community. Justice Kennedy took care to emphasize that the comments in question were made by the agency functioning as the trial court on this case during the hearing process — a distinction that may become important in the travel ban case. In theory, this case will now go back to Colorado for a new hearing in front of the Commission (presumably with different membership given the passage of time since the initial hearing) at which it could reach the same or a different result.
Justice Kagan’s concurring opinion attempts to minimize one fact that played a role in the majority opinion — the different treatment of other bakers who declined to decorate a cake with anti-LGBT messages. While the majority saw this as evidence of disparate treatment, Justice Kagan saw this distinction as compelled by the civil rights law in issue which banned discrimination based on sexual orientation. As refusing to engage in discrimination does not violate a law banning discrimination, Justice Kagan found nothing noteworthy in the Commission’s rejection of the frivolous complaints against these other bakers.
Justice Gorsuch’s opinion, while noting the rule that states do not have to create exemptions from generally applicable laws for sincere religious beliefs finds that the disparate treatment of people who support and oppose discrimination means that the law is not generally applicable. Of course, this claim is logically weak. All laws reflect some viewpoint of right and wrong. A law against animal sacrifice is generally applicable despite the fact that it only punishes those who want to engage in animal sacrifice. Alternatively, Justice Gorsuch suggests that none of the bakers were discriminating based on status but only based on the content of the message put forth by the cake. Again, this argument ignores that the message that some bakers refused to provide was an express message of bigotry while the message that the baker in this case refused to provide was only his own internal interpretation of an implicit message arising out of the use to which his customer would put his product.
Justice Thomas finds that there is a free speech exception to civil rights laws when the discriminatory conduct is expressive and would find that custom cakes are expressive.
Finally, Justice Ginsburg finds that, regardless of the comments by one commissioner, the full review process removes any taint from the ultimate result.
Because the majority opinion does not reach the ultimate result in this case, it is tough to read the tea leaves for future cases. There are clearly four votes for the proposition that civil rights laws can ban discrimination even if the would-be discriminators assert that they are acting based on their faith rather than bigotry. The Chief Justice and Justice Kennedy appear to generally support this proposition while recognizing that there is some exception — at least for ministers being asked to perform a religious service — where the act can only be seen as a religious exercise. Where exactly the line between these two should be drawn is left for another day.
Three other cases were decided today, leaving twenty-five cases for the last three weeks of the term.
