The Recent Holding in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission provides clues to business but no clear rules?

Recently the Supreme Court ruled in favor of Jack Phillips, the owner of Masterpiece Cakeshop in Colorado, who refused to make a wedding cake for Charlie Craig and Dave Mullins, a gay couple who were planning to marry in Massachusetts in 2012. Media outlets have rightly reported that the court’s decision was based on facts specific to the case, and that the Supreme Court’s decision does not provide much guidance for businesses on how their religious or philosophical objections to providing goods and service to gay couples might be resolved.  Still, a historical examination of Supreme Court’s interpretation of the Free Exercise Clause of the First Amendment and the Court’s opinion in Masterpiece Cakeshop provides some guidance to businesses on navigating the issue.

The Free Exercise Clause states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The first case to closely examine the scope of the Free Exercise Clause was Reynolds v. United States. Decided in 1878, Reynolds dealt with the prosecution of a polygamist.  The defendant claimed protection from prosecution under the Free Exercise Clause.  In deciding against Reynolds, the Supreme Court read the Free Exercise Clause as protecting religious practices, but not religious practices which were otherwise crimes. This case introduced the principle that although religious exercise is generally protected under the First Amendment, this does not prevent the government from passing neutral laws that incidentally impact certain religious practices.

This interpretation of the Free Exercise Clause continued into the 1960s, until the Supreme Court began applying a new standard called “strict scrutiny.” This standard required accommodation of religious conduct unless a state could show a compelling interest to restrict the conduct and that the means to achieve that end were no less burdensome than necessary. An excellent example of how this new test favored the exercise of religious beliefs is Sherbert v. Verner. In Sherbert, the Court overturned the state Employment Security Commission’s decision to deny unemployment benefits to a practicing member of the Seventh-day Adventist Church who was forced out of a job after her employer adopted a 6-day work week. In Sherbert the Supreme Court decided that conditioning the availability of State benefits on Ms. Sherbert’s willingness to violate a cardinal principle of her religious faith, working on Saturday, penalized the free exercise of her constitutional liberties.

This more expansive view of the Free Exercise Clause narrowed again in the 1980s, culminating in the 1990 case of Employment Division v. Smith. Examining a state prohibition on the use of peyote, the Supreme Court upheld the law despite the drug’s use as part of a religious ritual, and abandoned the strict scrutiny test. Instead, the Court again held that a “neutral law of general applicability” does not implicate the Free Exercise Clause.

Which brings us to Mr. Phillips and Masterpiece Cakeshop v. Colorado Civil Rights Commission.   In Masterpiece, the Supreme Court began its analysis by discussing the competing Constitutional interests of Mr. Phillips and his customers Mr. Craig and Mr. Mullins,

[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths. Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.

Justice Kennedy, writing for the majority of the Court, went on to discuss the nuances that could affect the outcome of this and similar cases,

One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defining whether a baker’s creation can be protected, these details might make a difference. The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless.

Although Kennedy discusses the complexity of these issues, the Court’s decision in Masterpiece turned on the original principle used by the Supreme Court to determine the proper application of the Free Exercise Clause announced in Reynolds in 1878 – neutrality.  The Supreme Court decided that the Colorado Commission in applying Colorado’s anti-discrimination laws was not neutral to Mr. Phillips religious beliefs, but hostile to them. To support his decision, Justice Kennedy included in his opinion a quote from a member of the Colorado Commission that decided Mr. Phillips case,

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

Justice Kennedy took great exception to the Commission’s treatment of Mr. Phillips religious beliefs and wrote:

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. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.

Justice Kennedy also found that the Colorado Commission had been selective in its willingness to allow religious beliefs to justify providing services specifically in the bakery context. On at least three other occasions, the Commission had decided the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Commission found that the baker acted lawfully in refusing service.

Justice Kennedy believed that Colorado’s anti-discrimination law as applied by the Colorado Commission was not neutral to religious beliefs. Instead, Justice Kennedy believed the Commission was deciding which religious beliefs were acceptable and which were not. And, because of this, the Commission’s treatment of Mr. Phillips violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.  So the ruling in favor of Mr. Phillips is based on the Supreme Court’s determination that in Mr. Philips’s case he was denied the right to a neutral decision maker who would give full and fair consideration to his religious objection. In deciding that the Colorado Commission was not neutral, the Supreme Court side-stepped the issue of whether the Commission’s actual decision violated the Free Exercise Clause.

Although the more practical question was side-stepped, that does not mean there is nothing to be learned. When reading Justice Kennedy’s opinion, the factors that will be important to deciding if the refusal to provide gay couples goods or service will be protected by the Free Exercise Clause can be seen in his discussion of the complexity of the competing interests. For example, does providing the good or service require you to participate in a ceremony or public event that has religious meaning? Does the good or service play a role in a ceremony or public event that has a religious meaning? Does the good or service contain words or images that express a moral or religious meaning?  Is there a legitimate artistic quality to the good or service? Is the good or service you are providing unique and is it created specifically for each customer?  The more of these questions you answer “yes”, the more likely your decision to provide services will be protected by the Free Exercise clause.  The more “no” answers you have to these questions, the more likely it is your decision to deny goods and services will not be protected.  Like most business decisions, there is a risk/reward analysis you have to make, and the legality of your actions is only part of that analysis.

Sam Burke is board certified in Trial Law by the Texas Board of Legal Specialization and can be reached at sburke@dentonlaw.com or www.dentonlaw.com.

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