Masterpiece Cakeshop Wins at the Supreme Court

The Supreme Court has ruled 7–2 in favor of Masterpiece Cakeshop, saying that “the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint” (see here and here for details on this case and links for more information). The Court found that the Colorado Civil Rights Commission failed to act neutrally towards Phillips’s religious beliefs, expressing open hostility and failing to grant him the same freedom they granted in similar cases to other bakers who refused to promote messages they disagreed with.

As the majority opinion’s syllabus states, “[T]he law must be applied in a manner that is neutral toward religion,” but they found evidence to the contrary in this case:

State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case….

That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.

The Court condemned the Commission’s insinuation that Phillips was insincerely using religion as a tool for discrimination and noted that the anti-discrimination law protects religion as well as sexual orientation:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere…. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

The success of those who would like to punish people like Jack Phillips depends on convincing people that opposition to same-sex marriage comes from a place of hatred and bigotry, and the Court’s decision strongly opposes this idea, respecting Phillips’s view of marriage as a legitimate and sincerely-held religious belief. Further, the Court warned against the State selectively allowing or restricting people’s freedoms according to which views the State deems to be offensive:

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’ conscience-based objections as legitimate, but treated his as illegitimate—thus 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…. In those cases, the court continued, there was no impermissible discrimination because “the Division found that the bakeries…refuse[d] the patron’s request…because of the offensive nature of the requested message.”

A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,”…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’s 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’ religious beliefs.

Justice Gorsuch added this in his concurring opinion:

In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise. Just as it is the “proudest boast of our free speech jurisprudence” that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive…. Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.

Today’s decision is focused on Phillips’s unique situation and doesn’t resolve the free-speech question, but if it leads to the State treating both sides equally, I’ll take it. I hope it will at least result in a toning down of the rhetoric against those who sincerely believe in man-woman-only marriage, even if it’s only because they now have a pragmatic reason to do so.

Amy K. Hall

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