BY ARTHUR S. LEONARD | The US Supreme Court, on June 26, agreed to hear an appeal of a Colorado Court of Appeals ruling that Jack C. Phillips does not have a First Amendment right for his business, Masterpiece Cakeshop, to refuse an order to bake a wedding cake for a same-sex couple.
The high court acted on a petition filed on behalf of Phillips and his business by Alliance Defending Freedom, an anti-gay “religious” law firm.
The ADF petition was filed last July and was listed for discussion during Supreme Court conferences more than a dozen times before being accepted. The addition of Donald Trump’s nominee, Neil Gorsuch, to fill the vacancy left by the death of Justice Antonin Scalia was likely the catalyst for a decision to grant review.
The ultimate disposition of the case, however, could heavily depend on the views of Justice Anthony Kennedy, the swing justice where LGBTQ issues are involved.
Ironically, 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 Scalia.
The petition asks the court, in effect, to reverse or narrow its long-standing precedent from that case, Employment Division v. Smith, where 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.” Such laws are ones that do not directly concern religious beliefs or practices, but whose application may incidentally affect those practices and beliefs.
It was in response to that 1990 decision that Congress passed the Religious Freedom Restoration Act — with many state governments following suit — which allows individuals to claim religious exemptions from complying with statutes under certain circumstances.
The question that the Supreme Court will now 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 high court has addressed the free speech aspects of this issue in the past.
In its 1995 Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston ruling, the Supreme Court ruled that Massachusetts’ public accommodations law would have to give way to the First Amendment expressive association rights of the organizers of Boston’s St. Patrick’s Day Parade, who refused to allow an LGBTQ group to march under its own banner. With an opinion by Justice David Souter, the court ruled unanimously that a parade is a quintessential expressive activity, and its organizers have a right to exclude groups whose presence would convey a message the organizers do not wish to.
By a bare 5-4 majority, the Supreme Court, in 2000, extended that ruling in Boy Scouts of America v. Dale, where Chief Justice William Rehnquist wrote, holding that the Boy Scouts, like the Boston parade, is an expressive association and could refuse to allow an out gay man to serve as an assistant scoutmaster because this would communicate a view about homosexuality the group did not want to communicate.
That 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 the BSA could be characterized as an “expressive association.”
Interestingly, over time, the winning parties in both cases have come to see the wisdom of allowing at least some LGBTQ participation in their activities. The Boston parade organizers have allowed gay groups to march in recent years, and the BSA voted to allow its local troops to permit participation by LGBTQ people as members and adult leaders, though troops sponsored by some religious organizations have continued to exclude them.
The high court, since 1990, 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 First Amendment right to refuse her services to a lesbian couple for their commitment ceremony.
Since then, courts in several other states have rejected religious exemption claims by businesses providing wedding-related services, including a 2016 New York ruling refusing a religious exemption to a farm that hosts and caters weddings.
The 2014 Hobby Lobby case, in which the Supreme Court found that a closely-held corporation could refuse on religious grounds to cover certain contraceptive methods under its health care plan, was litigated under the federal Religious Freedom Restoration Act, and so 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 publicizing the organization’s Gay Pride festival. The 2-1 ruling was premised on the court’s conclusion that denying services to the group was not based on the sexual orientation of anybody, and the concurring judge also cited the state’s Religious Freedom Restoration Act. The court’s dissenter, meanwhile, found that the company clearly violated the city of Lexington’s anti-discrimination ordinance and had no right to a religious exemption.
In the Masterpiece Cakeshop case, Charlie Craig and David Mullins decided to marry out of state in 2012, at a time when Colorado did not yet allow same-sex marriages, but they also planned a local celebration to follow with their families and friends. When they contacted Masterpiece Cakeshop to order a cake for the occasion, Phillips refused their business, citing his religious objection to same-sex marriage.
Publicity surrounding Masterpiece’s refusal led another baker to give them a free wedding cake, but the couple also decided to file a sexual orientation discrimination claim with the Colorado Civil Rights Division. Rejecting Phillips’ First Amendment free exercise of religion and free speech defenses, the Division ruled in the couple’s favor, finding that Masterpiece violated Colorado’s gay rights law.
When ADF appealed that administrative ruling, the intermediate-level Colorado Court of Appeals rejected both of Phillips’ constitutional arguments, holding that baking and decorating a wedding cake are not speech or artistic expression. The gay rights law, the court found, is a “neutral law of generally applicability” and so within the scope of the Supreme Court’s 1990 Employment Division v. Smith precedent for which Scalia wrote the opinion. Colorado has no Religious Freedom Restoration Act creating a statutory exemption to its anti-discrimination law.
Because the Supreme Court granted review on both the free speech and religious exercise claims, it could reach a split decision. If it wants to adhere to a broad view of the 1990 precedent, it could easily follow the route taken by several state courts that have refused businesses religious exemptions 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.
If it sticks with its precedents, however, the high court is unlikely to rule for Phillips on the free speech argument, since the recognized constitutional exception is for organizations or activities that have a primary or significant expressive purpose. Both the Boston St. Patrick’s Day and the Boy Scout rulings involved non-profit organizations — not businesses — that were engaged in activities that the court found 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. It might bow to ADF’s argument that people of strong religious convictions who wish to incorporate those beliefs into their businesses have a right not to be compelled by the government to undertake activities expressing views contrary to their religious beliefs.
If the court came to that conclusion, it would potentially tear a big hole in the protection against discrimination provided by the public accommodations laws of most 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. Craig and Mullins have been represented by the American Civil Liberties Union in their litigation efforts. 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 ADF petition to the Supreme Court. Given the strong interest in this case, it is likely to spawn a blizzard of additional amicus briefs.
Oral argument will be held sometime next winter.