The Supreme Court just ruled in favor of the Colorado baker who declined to bake a custom wedding cake for a same-sex wedding. However, they did not settle the question of religions freedom. That issue was kicked down the road.
In a 7-2 decision, the justices set aside a Colorado court ruling against the baker. This stopped short of deciding the broader issue of whether a business can refuse to serve gay and lesbian individuals. The opinion was penned by Justice Anthony Kennedy, who is often the swing justice in tight cases.
This is a huge win for this baker and religious freedom. It may not be the definitive ruling we need, but it is a huge precedent. The ruling focused on what the court described as anti-religious bias on the Colorado Civil Rights Commission when it ruled against baker Jack Phillips. “The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” Kennedy wrote in his majority opinion.
The court made it clear that the broader issue “must await further elaboration.” “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,” Kennedy wrote. “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.”
This all started in a July 2012 encounter. Charlie Craig and David Mullins of Denver visited Masterpiece Cakeshop to buy a custom-made wedding cake. Phillips refused his services when told it was for a same-sex couple. The state civil rights commission sanctioned Phillips after a formal complaint from the gay couple. Mullins described their case as symbolizing “the rights of gay people to receive equal service in business … about basic access to public life.” But the Trump administration has backed the religious freedom of Phillips to refuse service on the basis of his beliefs. He was represented in court by the Alliance Defending Freedom, a conservative Christian nonprofit. Phillips lost at every step in the legal appeals process, bringing the case to the Supreme Court and their decision.
This has devastated Phillips’ business and he had to lay off employees over it. He never backed down from saying that it’s his choice: “It’s not about turning away these customers, it’s about doing a cake for an event — a religious sacred event — that conflicts with my conscience,” he said last year. The court in December specifically examined whether applying Colorado’s public accommodations law to compel the local baker to create commercial “expression” violated his constitutionally protected Christian beliefs about marriage.
This case stepped right into a 2015 landmark opinion legalizing same-sex marriage nationwide and a separate 2014 decision affirming the right of some companies to act on their owner’s faith by refusing to provide contraception to its workers. This also became a state’s rights issue versus the federal government. Attorney General Jeff Sessions in October issued broad guidance to executive branch agencies, reiterating the government should respect religious freedom, which in the Justice Department’s eyes extends to people, businesses and organizations.
When the justices heard arguments in December, Kennedy was plainly bothered by certain comments by a commission member. The commissioner seemed “neither tolerant nor respectful of Mr. Phillips’ religious beliefs,” Kennedy said in December. Liberal justices Stephen Breyer and Elena Kagan joined the conservative justices in the outcome. Kagan wrote separately to emphasize the limited ruling. But Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. “I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins,” Ginsburg wrote.
“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,” Kennedy wrote.
By the way, most of the media is reporting this as a narrow victory. A 7-2 Supreme Court vote is not narrow, but the decision itself can be considered very limited in scope. I’ll give the final word to Justice Clarence Thomas: “Colorado would not be punishing Phillips if he refused to create any custom wedding cakes; it is punishing him because he refuses to create custom wedding cakes that express approval of same-sex marriage,” Thomas said. “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.”
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