Monthly Archives: June 2018

UPDATE: The Outcome of the Colorado Wedding Cake Case

Each side had a strong argument; each side had a genuine case.  On the one side was the right of a same-sex couple not to be made to feel like second-class citizens when attempting to secure a custom-made wedding cake for their nuptials.  On the other was the right of a devout Christian who believed homosexuality to be a sin not to be compelled by law to participate in such a wedding with his creative artistry.

The Supreme Court has just issued a 7-2 ruling (more on who the seven were in a moment) on the side of the Colorado baker.  However, the Court did not entirely resolve the question that it was expected to resolve.  The Court was expected to issue a ruling that would explicitly say whether bakers who think gay marriage goes against God’s laws have the right to refuse to make custom-designed wedding cakes for same-sex couples.  However, the Court avoided taking that question head-on, and instead focused on specific aspects of this particular case, issuing a ruling that was much less easily applicable to other cases that may arise.  The big question is thus still unresolved.

The action that bakery owner Jack Phillips was appealing was an administrative action by Colorado’s Commission on Civil Rights which ordered him to cease and desist from refusing to make custom-designed wedding cakes for gay couples and that also ordered him to have sensitivity training for his employees and to keep records of all refusals of service for the next two years. Rather than ruling directly on whether Phillips had the right to do what the commission had gotten after him about, the justices focused on the behavior of the commission, issuing a ruling that implied that if they had behaved differently and still arrived at the same conclusion, it might (or might not) have been a different story.

The point of the ruling is that the steps that the commission went through to arrive at its action against Phillips violated Phillips’s First Amendment rights, not necessarily by deciding against him in the end, but by failing to take his religious convictions and claims seriously in the process it went through.  The commission was dismissive of Phillips’s religious convictions, rather than (as the Court would require) treating those convictions as a genuine factor even if that factor has to be balanced with, and possibly superseded by, other compelling state interests.  They compared his position with that of defenders of slavery and the Holocaust, and treated him life a despicable wrongdoer.  Again, by focusing narrowly on the behavior of the commission in this particular case, the Court declined to make clear how it can be expected to rule on other cases where authorities are more polite and equitable (while still ending up with similar decisions and actions) in the way they address business proprietors like bakers and florists who refuse to provide custom artistic services to same-sex couples.

Again, it was a 7-2 ruling.  The one justice who was expected to be the swing vote in this case, Anthony Kennedy, wrote the majority opinion.  This excerpt is significant:

Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. The Court’s 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

It should be remembered, of course, that Kennedy is also the justice who wrote the 2015 decision requiring states to license and recognize gay marriages.  But he was unexpectedly joined by two Democratic appointees–Stephen Breyer (appointed by Bill Clinton) and Elena Kagan (appointed by Barack Obama)–as well as (predictably) the four other Republican appointees.  Two of them wrote concurring opinions (in other words, opinions agreeing with the outcome but differing on some of the fine points).  If Neil Gorsuch, the newest justice and the only one appointed so far by Trump, had had his way, the Court would have ruled definitively that Phillips was right to refuse custom service to gay couples.  Clarence Thomas came close to saying that without explicitly doing so.  The two most liberal justices, Ruth Bader Ginsburg (Clinton appointee) and Sonia Sotomayor (Obama) dissented: they would have required Phillips to make the cake.

Story from Politico Magazine with the background of the case, December 4, 2017

Story in Politico announcing the ruling, June 4, 2018

Full text of the Court’s ruling, including concurrences and dissents, June 4, 2018