On June 26 the United States Supreme Court granted a petition filed by Alliance Defending Freedom (ADF), the anti-gay “religious” law firm, on behalf of Jack Phillips and his business, Masterpiece Cakeshop, to determine whether the Colorado Court of Appeals correctly denied Phillips’ claim that he is privileged under the 1st Amendment to refuse an order to bake a wedding cake for a same-sex couple. Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission, No. 16-111 (cert. granted June 26, 2017).
The petition was filed last July 22, and had been listed for discussion during the Court’s conferences more than a dozen times. The addition of Donald Trump’s nominee, Neil Gorsuch, to fill a vacancy on the Court was likely the catalyst for a decision to grant review, although it the ultimate disposition of the case could heavily depend on the views of Justice Anthony Kennedy, the “swing justice” on the Court in cases involving LGBT issues. However, in an interesting twist, one of the main precedents that stands in the way of a victory for Phillips and Masterpiece Cakeshop is an opinion written in 1990 by Justice Antonin Scalia, whose death led to Gorsuch’s appointment.
The petition asks the Court, in effect, to reverse or narrow its long-standing precedent, Employment Division v. Smith, in which Justice Antonin Scalia wrote that individuals do not have a constitutional right based on their religious beliefs to refuse to comply with “neutral” state laws of general application. Neutral state laws are those that do not directly concern religious beliefs or practices, but whose application may incidentally affect them. In response to this decision, both Congress and many state governments have passed statutes allowing persons to claim religious exemptions from complying with statutes under certain circumstances.
The question which the Court will consider, as phrased by ADF in its petition, is: “Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment?”
The Court has addressed the free speech aspects of this issue in the past. In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995), the Court ruled that a state’s public accommodation law would have to give way to the 1st Amendment expressive association rights of the organizers of Boston’s St. Patrick’s Day Parade, who refused to allow an LGBT group to march under its own banner in the parade. The Court ruled unanimously, in an opinion by Justice David Souter, that a parade is a quintessential expressive activity, and the organizers of the parade have a right to exclude groups whose presence would convey a message that the parade organizers do not wish to convey.
By a bare 5-4 majority, the Court extended that ruling in Boy Scouts of America v. Dale (2000), in which Chief Justice William Rehnquist wrote for the Court, holding that the Boy Scouts of America, like the Boston parade organizers, is an expressive association and could refuse to allow an openly gay man to serve as an assistant scoutmaster because this would communicate to its members and the public a view as to homosexuality that the BSA did not want to communicate. The ruling sparked two dissenting opinions, sharply contesting the majority’s weighing of rights in allowing the Boy Scouts to discriminate and challenging the view that BSA could be characterized as an “expressive association.”
Interestingly, the winning parties in both of these cases have over time come to see the wisdom of allowing at least some LGBT people to participate in their activities. The Boston parade organizers have allowed some LGBT groups to participate in their parade in recent years, and BSA voted to allow its local troops to permit participation by LGBT people as members and adult leaders, although troops sponsored by religious organizations have continued to exclude LGBT people in some places.
The Court has yet to return to the religious objection aspect of this case. A few years ago it refused to review a decision by the New Mexico Supreme Court holding that a wedding photographer did not have a 1st Amendment right to refuse to provide her services to a lesbian couple seeking photographic documentation of their commitment ceremony. Since then, courts in several other states have rejected religious exemption claims by various businesses that provide wedding-related services, including a recent New York ruling refusing a religious exemption to a farm that had hosted and catered weddings. The more recent Hobby Lobby case, in which the Supreme Court held that a closely-held corporation could refuse on religious grounds to cover certain contraceptive methods under its health care plan, was litigated in terms of a statutory exemption provided by the federal Religious Freedom Restoration Act, and thus was not grounded on a constitutional claim.
A recent appellate ruling by a Kentucky court, however, upheld the right of a company that makes custom t-shirts to refuse an order from a gay organization for shirts to publicize the organization’s Gay Pride festival. The 2-1 ruling was premised on the court’s conclusion that the denial of services was not based on the sexual orientation of anybody, but the concurring judge also cited the state’s Religious Freedom Restoration Act, while the dissenter found a clear violation of the a municipal anti-discrimination law and no right to a religious exemption.
In the case granted review by the Supreme Court, Charlie Craig and David Mullins were planning to go out-of-state to marry, because in 2012 Colorado did not yet allow same-sex marriages. However, they planned to follow up with a celebration near their home in order to more easily involve their family and friends, and went to Masterpiece Cakeshop to order a cake for the occasion. The owner, Jack Phillips, declined their order, citing his religious objection to same-sex marriage. When Craig and Mullins publicized this refusal, they were offered a free wedding cake by another bakery which they accepted, but they also decided to file a charge of sexual orientation discrimination with the Colorado Civil Rights Division. The Division ruled in their favor, approving an administrative law judge’s decision that rejected Phillips’s 1st Amendment defenses of free exercise of religion and freedom of speech and found that Phillips had violated the state’s statutory ban on sexual orientation discrimination by businesses.
ADF appealed the administrative ruling to the Colorado Court of Appeals, which rejected both of Phillips’ constitutional arguments. The court held that baking and decorating a wedding cake is not speech or artistic expression, as Phillips had argued, and that the Commission’s order “merely requires that [Phillips] not discriminate against potential customers in violation of [the Colorado Anti-Discrimination Act] and that such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.” The court deemed the Act to be a “neutral law of generally applicability,” and thus within the scope of the Supreme Court’s Employment Division v. Smith precedent. Colorado does not have a Religious Freedom Restoration Act that could arguably create a statutory exemption to the anti-discrimination statute.
Because the Supreme Court granted review on both the free speech and religious exercise claims, there might result a split decision by the Court. If it wants to adhere to a broad view of Employment Division v. Smith, it can easily follow the route taken by various state courts that have refused to allow businesses to claim a constitutional religious exemption from complying with anti-discrimination laws. Or, it could use this case to back away from the Employment Division holding or narrow it in some way.
The Court is unlikely to rule for Phillips on the free speech argument if it sticks with its precedents, since the recognized constitutional exception is for organizations or activities that have a primary or significant expressive purpose. Both Hurley and Dale involved non-profit organizations, not businesses, that were engaged in activities that the Court found (by only a narrow margin in the case of the Boy Scouts) to have strong expressive association claims. It is unlikely that a business whose primary activity is selling cakes could make a similar claim. But the Supreme Court can be full of surprises, and there have been significant changes in its membership since these cases were decided. The Court might bow to the argument by ADF that people of strong religious convictions who wish to incorporate those convictions into their businesses have a right not to be compelled by the government to undertake activities that would express a view contrary to their religious beliefs. This would potentially tear a big hole in the protection against discrimination provided by the public accommodations laws most of the states, and not just those that ban discrimination because of sexual orientation or gender identity.
The Colorado Court of Appeals’ decision will be defended before the Supreme Court by the state’s attorneys. Lambda Legal and One Colorado, with cooperating attorneys John McHugh and Anthony Giacomini of Denver-based Reilly Pozner LLP, filed an amicus brief in response to the petition. Given the wide-ranging interest in the issues underlying this case, it is likely that the Court will receive a mountain of amicus briefs. Oral argument will be held sometime next winter.