confusion abounds in the case of the same-sex wedding baker

One of the most publicized cases of the 2017-2018 Supreme Court term was Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Commission. At issue was the petition by the owner of Masterpiece Cakeshop that his First Amendment rights had been violated when he was sanctioned by the Colorado Civil Rights Commission for refusing to bake a wedding cake for a gay couple’s reception. This petition was rejected by every court until the Supreme one, which in a 7-2 decision agreed with a small part of the petitioner’s Free Exercise claim and set aside the sanction of the Commission.

In a term beset with split decisions, this result seems at first like a resounding endorsement of the primacy of religious freedom above civil rights. The press about the decision overwhelming framed it as the Court siding with the baker, and the reaction to that formulation caused a lot of concern.

But that formulation was very misleading. The Court didn’t so much rule for the baker as it ruled against the Commission, essentially declaring a mistrial because of what it perceived as anti-religious animus in the record. Justice Kennedy, writing for the majority, explicitly punted on addressing the underlying tension between religious liberty and civil rights that formed the core of the baker’s suit.

What’s also interesting is how disunited the Court was in reaching a 7-2 decision. In all, five opinions were written for this case, only one a dissent. All the opinions attack each other from footnotes, and often the targets of those attacks were themselves written in footnotes. It looks like a lot of the deliberation was done through correspondence, and the contorted opinions suffer from the confusion. But a careful reading of them reveals a clumsily evolving jurisprudence around the Free Speech and Free Exercise clauses, as well as possible fault lines in the Court that could fracture in subsequent decisions where more is at stake. A future case that forces a direct confrontation of the tension between First Amendment and civil rights could be much tighter and more explosive.

 Kennedy’s majority decision

That this decision was a punt on the central issue was clear from the syllabus. Citing his own decision that recognized marriage equality, Obergefell v. Hodges, Kennedy wrote:

The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion.

During oral argument, all the justices were concerned about what it might mean to side with the baker, Jack Phillips. Justice Breyer worried, and even Justice Gorsuch agreed, that a general exemption to public accommodations laws for artistry would “undermine every civil rights law.” Kennedy seized on a detail in the record that troubled him: one of the commissioners had stated his view that

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… 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.

Kennedy mischaracterized this admittedly unfortunate remark in his decision, claiming the commissioner disparaged the man’s faith itself as “despicable” and “merely rhetorical”. Adding to Kennedy’s concern, no authority in the appeals process subsequently disavowed or even mentioned those comments — and the Colorado Supreme Court declined to hear the case at all! Kennedy concludes that no one in the Colorado government found those comments troubling, which he submits as evidence of bias throughout the process.

While this case was pending, a conservative Christian troll named William Jack went around to three Colorado bakeries, ordering cakes depicting handholding groomsmen with bible verses like “God hates sin” and “Homosexuality is a detestable sin” written next to them. The bakers refused the requests for various reasons — Kennedy paused only to note that the messages were deemed “derogatory”, “hateful”, or “discriminatory” — and Jack filed complaints with the Colorado Civil Rights Commission. It ruled against Jack in each case, and by examining the record at length Kennedy identified a “contrast” between the Commission’s treatment of these “conscience-based objections” in the Jack cases and that of petitioner Phillips in two respects:

  1. Phillips’s defense was rejected “in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker,” but that point wasn’t addressed in the Jack cases.
  2. The Jack bakers’ willingness to sell other products without offensive messaging, even ones “depicting Christian themes”, vindicated them with the Commission; but Phillips’s similar offer to sell “birthday” and “shower” cakes as well as generic goods like “cookies and brownies” was “dismissed” as “irrelevant.” [1]

The Court of Appeals later distinguished the Jack cases by noting that the Commission had found those bakeries “did not refuse the patron’s request because of his creed, but rather because of the offensive nature of the requested message”. Kennedy pounced on this too, asserting the appeals court, in so paraphrasing the findings of the Commission, had made impermissible value judgments about what is or isn’t offensive, “itself send[ing] a signal of official disapproval of Phillips’ religious beliefs.”

Citing a precedent case Church of Lukumi Babalu Aye v City of Hialeah — for which Kennedy also wrote the Opinion of the Court — Kennedy declares:

the Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion… while the issues here are difficult to resolve… the order must be set aside.

Finally, to be clear that this case should be narrowly construed, he instructs future courts that will inevitably be saddled with the issues he craftily dodged:

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

Kagan’s concurrence

Justice Kagan (joined by Justice Breyer) wrote separately in her characteristically brief way to heartily agree with Kennedy’s basic premise — that Phillips’s case was not treated neutrally and respectfully — but to elaborate on one aspect of the Jack cases analysis. Kagan submitted that the error in basing judgement on “the government’s own assessment of offensiveness” was made “yet more disquieting” by the notion that not only was a proper basis available for distinguishing the Jack cases from Phillips’s case, but that it “in fact, was obvious.”

The Colorado Anti-Discrimination Act (CADA) bars public accommodations from denying goods or services based on certain characteristics, including sexual orientation and creed. None of the Jack bakers violated the Act, wrote Kagan, since they wouldn’t have made those offensive cakes for anyone. Phillips, by contrast, routinely made wedding cakes for heterosexual couples but refused to do so for homosexual couples. Hence a “plain reading and neutral application of Colorado law” was available to distinguish the cases, “untainted by any bias against a religious belief.”

Gorsuch’s concurrence

Justice Gorsuch (joined by Justice Alito) also wrote separately to indicate he was “pleased to join [the Court’s] opinion in full” but still filled 12 pages criticizing those opinions written by the Court’s liberals. In verbose prose that poorly summarizes if not outright misrepresents several facts of the case, Gorsuch argued contra Kagan that there was in fact no way to save the Commission’s ultimate judgement against Phillips. That’s because it ruled for the Jack bakers, a disparity that could have only been due to religious animus.

Gorsuch asserted that the Phillips and Jack cases “share all legally salient features” because both prospective customers “bore a statutorily protected trait (religious faith or sexual orientation)” and the bakers “refused service intending only to honor a personal conviction.” In both cases, the bakers wouldn’t have sold the requested product to anyone; in Phillips’s case, that was because he testified that he wouldn’t have sold a cake to celebrate a gay wedding to anyone. Gorsuch asserts: “In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers.” But, while the Commission sustained the Jack bakers’ refusal as “only intend[ing] to distance themselves from ‘the offensive nature of the requested message'”, it denied Phillips on the basis that his “intentions were ‘inextricably tied to the sexual orientation of the parties involved’ and essentially ‘irrational.'” [2]

Gorsuch then makes a flimsy argument that if Phillips’s objection is “inextricably tied” to a protected class, then so must be the Jack bakers’ objection since “usually” it’s religious folks requesting religiously-themed anti-gay-marriage cakes. He faults the Commission for presuming Phillips’s “intent to discriminate against a protected class” while later failing to presume the same for the Jack bakers “even though the effects of the bakers’ conduct” (denial of service to “customers who bear a protected characteristic”) “were just as foreseeable.” [3]

Gorsuch’s most obnoxious — and dangerous — argument is his response to Kagan’s response in a footnote to him. He doesn’t like her “suggestion” that “this case is only about ‘wedding cakes’ — and not a wedding cake celebrating a same-sex wedding”. At one extreme, he writes, the sought-after cake could be seen as “just a mixture of flour and eggs” while at the other it would have been “a cake celebrating the same-sex wedding” of the respondents. Gorsuch then attacks Kagan and the Commission both (emphasis in the original):

We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right. The problem is, the Commission didn’t play with the level of generality in Mr. Jack’s case in this way… Only by adjusting the dials just right—fine-tuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views—can you engineer the Commission’s outcome, handing a win to Mr. Jack’s bakers but delivering a loss to Mr. Phillips.

This exaggerated view brazenly disparages the role of courts to carefully weigh the relative merits and applicability of competing evidence, arguments, and precedents when applying the law. But Gorsuch concludes his opinion with an even more dismissive argument about the interpretive power of the State through its courts:

To some, all wedding cakes may appear indistinguishable. But to Mr. Phillips that is not the case—his faith teaches him otherwise… [and religious] commitments, as defined by the faithful adherent, not a bureaucrat or judge, are entitled to protection under the First Amendment.

Thomas’s concurrence

Justice Thomas (joined by Justice Gorsuch) made an island of an argument that started with a dig on everyone. Thomas credited Gorsuch rather than Kennedy with explaining the salient finding in favor for Phillips, namely the “discriminatory application” of CADA exposed by the contrast with the Jack bakers. But instead of actually joining Gorsuch’s opinion, Thomas joined the majority opinion only “to the extent the Court agrees” with Gorsuch’s emphasis on the Jack cases. Asshole!

Thomas wrote separately to address Phillips’s free speech claim, which he said the Court refused to address because of a factual dispute in the record. But Thomas asserted that the appeals court had in fact already resolved that dispute. Specifically — and this appears to be the heart of the disagreement between Kagan and Gorsuch — Phillips had not (emphasis in original) “refused to sell the couple any wedding cake (including a premade one).” Rather, wrote Thomas, the appeals court found that Phillips had exercised his expressive powers and refused to “design and create a cake to celebrate [a] same-sex wedding.” [4] Even after allegedly identifying such “expressive” conduct regarding the design activity, the appeals court found Phillips would not be seen as being expressive in merely complying with a public accommodations law (Kennedy’s distinction #1) and that he could “post a disclaimer to that effect.” That so enraged Thomas that he wrote more than Gorsuch did in order to comment about it.

His argument goes like this: symbolic conduct can be expressive, and when it is the government is restricted in regulating it, including whether to compel it. Phillips intends to be expressive with his work — he consults with each couple, sketches designs, even sometimes attends the weddings — and “sees the inherent symbolism in wedding cakes.” For Phillips, the message of wedding cakes is that the newly married couple should be celebrated — a message which Thomas urges wedding cakes “do, in fact, communicate”! [5] So, no amount of equivocation about what a reasonable observer might think, or the efficacy of a disclaimer, or citing (or, as Thomas argues at great length, misapplying) precedent about government regulation of speech can save the State from having erroneously infringed on Phillips’s right to withhold his services. And despite his stated refusal to avoid a question of strict scrutiny into the action of the State since the appeals court didn’t address it, Thomas still gripes (echoing Kennedy) about what he sees as improper state judgement about what’s offensive.

Thomas quotes Chief Justice Roberts’s dissent [6] from Obergefell that

“It is one thing… to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted” and unentitled to express a different view.

He concludes with a see-i-told-you-so reminder about the inevitable clash between religious and civil rights, so studiously avoided by the majority here, that he predicted in his own dissent in Obergefell. Charming!

Ginsburg’s dissent

Justice Ginsburg (joined by Justice Sotomayor) wrote the lone dissent in this case. She spent a little time further trickling out the details of the case [7] in order to double down on Kagan’s argument that Phillips’s refusal is easily distinguished from that of the Jack bakers. And this is all notwithstanding Gorsuch’s equivocation (emphasis in original):

When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding — not a cake celebrating heterosexual weddings or same-sex weddings — and that is the service [respondents] were denied. [8]

Ginsbrug relegates to a footnote one of her strongest criticisms of Gorsuch’s opinion, namely his assertion that Masterpiece Cakeshop and the Jack cases “share all legally salient features”:

What critically differentiates them is the role the customer’s “statutorily protected trait” played in the denial of service. Change [respondents’] sexual orientation (or sex), and Phillips would have provided the cake. Change Jack’s religion, and the bakers would have been no more willing to comply with his request.

But she clumsily leaves an opening to attack from Thomas in another footnote where she appears to fault Phillips for failing to provide evidence about the objective expressiveness of his cakes or wedding cakes in general.

Ginsburg also attacks the central oddity of Kennedy’s opinion, namely that “the comments of one or two Commissioners should be taken to overcome Phillips’ refusal”. After all, the Commission was just the first in a series of four judicial bodies which deliberated about this case, including the Court of Appeals which reconsidered the case de novo. As such, she argues, this case is distinct from the only major precedent the Court’s opinion relies upon, Church of Lukumi Babalu Aye. In that case, the City Council of Hialeah, Florida had shown explicit anti-religious bias in both deliberation and ordinance; but, aside some informal legal advice from Florida’s attorney general, it was the sole authority involved [9].

Conclusion

It is beyond argument that this case was badly handled. Kennedy’s majority opinion was an obvious and explicit dodge from the substantive issues the case raised. It arguably misapplied precedent and even contradicted itself. Facts of the case were trickled out in opinion after opinion, selected to aggrandize whichever slant or spin the author desired to emphasize. The opinions referenced and attacked each other in a hail of footnotes, showing that a plurality of the justices disagreed forcefully with either the merit or the degree of salience of the various points argued. Basic disagreements on a few of the core facts suggested a careless reading of the records of both the Commission and the Court of Appeals.

The media coverage of the case was unified in declaring this an apparent victory for religious freedom. A 7-2 decision setting aside the censure of a baker who refused service to a gay couple, written by the author of the decision legalizing gay marriage, certainly seems definitive. Anecdotally, I knew of many who were worried about the direction this decision portends; and who could blame them from the cursory reporting this case got?

A deeper look into the facts, argument, and opinions expose deep fissures in the rationale of the Court. The decision itself is no confirmation of a baker’s right to choose; it’s hard not to see this case as a studied effort in avoiding that issue altogether. But the conservative concurring opinions do suggest the threat of a more ironclad assertion in a future case untainted by procedural questions, and the weaknesses of the liberal counterarguments here carry the risk that no meaningful check on those ideological arguments will be on offer. Perhaps the headlines were more of forecast than of report.

References

Footnotes

[1] As becomes clear in subsequent opinions which reference the lower court records in this case, whether Phillips actually offered such alternatives remains in serious doubt. But this is the argument Kennedy spends the least time of any exploring, and that inattention is what opens the door to the flurry of other opinions exploring the expressive power of baked goods. It’s worth noting too that the appeals court rejected this argument entirely when Phillips advanced it in his own defense, arguing “potential compliance” with the law in one respect doesn’t permit defying it in another.

[2] Gorsuch delights throughout his opinion on the inclusion of the word irrational in the Colorado appeals court decision. He ironically uses it himself several times to paint religious conservatives as a tragically persecuted group. But the appeals court was actually quoting Gorsuch’s well-known hero, the late Antonin Scalia, in his majority opinion in a 1993 case about anti-abortion protesters. In that case, Bray v. Alexanadria Women’s Health Clinic, the Court found that clinic-blockading anti-abortion protesters had not discriminated against women in general because there were “common and respectable reasons for opposing abortion other than a derogatory view of women as a class.”

Phillips’s argument in Masterpiece Cakeshop heavily depended on Bray, and the appeals court rejected that reliance by quoting Scalia’s qualification in that decision:

Some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews.

This passage is the appeals court’s explicit justification for its ruling that “discrimination on the basis of one’s opposition to same-sex marriage is discrimination on the basis of sexual orientation.” It’s also the source of Gorsuch’s fixation on irrationality and presumption. His contorted misattribution of this passage to the Commission conspicuously omits its original source: namely, the appeals court citing precedent.

[3] Gorsuch’s emphasis on presumption in trying to establish an equivalency about effective intent ignores a key fact of the record that much more naturally distinguishes the cases. “I will not design and create wedding cakes for a same-sex wedding regardless of the sexual orientation of the customer,” testified Phillips. But the ultimate customer of any wedding cake is the marrying couple, so Phillips is rightly presumed to intend to disfavor a CADA-protected class (sexual orientation) in his blanket refusal on same-sex wedding cakes. It is far from clear that the ultimate customer of a cake bearing scriptural language or references to God is necessarily a religious person or group, and less clear still that the cakes sought in the Jack cases so clearly implicated any particular creed that the bakers could be readily presumed to be disfavoring it (in the sense of the Bray test) in their refusals.

[4] Thomas substituted the placeholder “a” when quoting the appeals court, and it’s strange that he would attempt to alter the record in just this way. The appeals court actually found that the couple had requested Phillips make them a cake (emphasis mine) “to celebrate their same-sex wedding.” In declining, Phillips generalized the situation by telling them he “does not create wedding cakes for same-sex weddings because of his religious beliefs”. It isn’t clear that this actually settles whether Phillips would have sold them a premade or generic cake.

The record suggests more in fact: a lesbian couple signed an affidavit that they had been turned away from placing an order for cupcakes “for their family commitment ceremony” earlier the same year by one of Phillips’s Masterpeice Cakeshop co-owners, and that the stated reason was “a policy of not selling baked goods to same-sex couples for this type of event.” Interestingly, Kennedy mentioned this very fact in the majority opinion but only in retelling the history of how an investigator found probable cause to refer the couples’ case to the Commission to begin with. Kennedy then failed to consider how it undermined his own finding of a contrast between the Commission’s treatment of the Phillips and Jack cases. Ginsburg calls out this contradiction too in her dissent, but only in a footnote.

In fact, the record does remain in dispute. Kennedy mentioned that Phillips conceded at oral argument that “if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter” that the State could well protest and likely prevail against. But he argued that this case is about narrower First Amendment principles because of the design of a message incompatible with his “deep and sincere religious beliefs”. The appeals court found more narrowly still that Phillips’s sole objection was to the “celebratory message about same-sex marriage that baking a wedding cake would convey”; but that Phillips declined before discussing (emphasis mine) “any details of their wedding cake”, calling into serious question the expressive character of his refusal. It’s telling then that Thomas substituted “their” with “a” since “any” — the very word he so emphatically argued against by invoking expressive conduct — seems to better describe Masterpiece’s policy of not participating with any celebrations of gay unions.

[5] As evidence of this, Thomas cites experts characterizing wedding cakes as “standardized and inevitable” as well as having “long varied in color, decorations, and style”, but still invariably capable of signaling to “an average person” that Hey! This is a wedding! Thomas spent more than two pages explaining how wedding cakes are universal identifiers of weddings in order to aggressively counter a central argument of the appeals court and an offhand footnote from Ginsburg’s dissent. Both discussed the conditions under which wedding cakes may communicate any messages at all. But he wrote only two or three sentences to assert that weddings exist to celebrate and “bear witness to” the marrying couple, which is actually the crux Phillips’s argument.

[6] Thomas enjoys citing dissents in his own decisions, often themselves dissents: “This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized.”

[7] It was Ginsburg who recounted the greatest detail about Jack’s homophobic cake requests, so much so that Kagan cited Ginsburg’s dissent as “further describing the requested cakes” in her concurring opinion. Each successive opinion added new details about the case history, casting serious doubt on the thoroughness of any of them.

[8] In fact, Kagan herself made the same argument that Ginsburg made, though she relegated it to a very long footnote explicitly criticizing Gorsuch’s opinion. It seems that if Kagan (and Breyer) hadn’t been swayed by Kennedy’s indignation over the Colorado agencies’ handling of Phillips’s case, this would have been a 5-4 decision right down the ideological divide.

[9] Thomas suggested but didn’t say that he also felt Kennedy’s outrage angle was a weaker one when he admitted that “the Commissioners’ comments are certainly disturbing” but focused instead entirely on what he saw as discriminatory application of the law. Frankly, Kagan’s and Gorsuch’s opinions also mostly ignore those comments, focusing instead — and for Gorsuch, “maybe most notably” — on the Jack cases. And, at least in the case of Kagan’s opinion, the appeals court more or less did apply her “obvious” basis for distinguishing the Jack cases; and yet she concurs in judgement dismissing the Commission’s sanction because of its failings in the first instance.

Indeed, Kennedy and Kagan both hold the Commission’s bias as a centerpiece of the decision, and Ginsburg missed an opportunity to oppose this precedent with more vigor. The record and laws at issue in Church of Lukumi Babalu Aye were gratuitously and explicitly designed to disparage one particular religion, specifically because of a single ritual they hoped to ban. Citing it as precedent to set aside an imperfect judgement in favor of a protected class by a lower court seems at least questionable if not outright abusive. Furthermore, that decision was unanimous but also featured multiple concurring opinions which rejected aspects of the Court’s opinion as well as challenging some precedents it cited. Using it here under circumstances that are explicitly criticized in dissent further confuses the record and the precedent.

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