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Justice Kennedy Has His Cake and Eats It, Too

By Amira Hasenbush

Today, the Supreme Court published its Masterpiece Cakeshop ruling, deciding - or rather not deciding - whether a baker can refuse to bake a wedding cake for a same sex wedding ceremony on religious grounds.  

To catch you up, here are the facts: Charlie Craig and Dave Mullins went to the The Masterpiece Cakeshop and asked its owner and baker, Jack Phillips, for a cake for their wedding.  Before engaging in any discussion about design, Phillips told the couple, "I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.”  Phillips is a religious Christian, and he said that baking the cake would be an endorsement of same sex marriage, which is against his religious beliefs.  The case went before the Colorado Civil Rights Commission, who ruled that this refusal violated the Colorado Anti-Discrimination Act (CADA).  This holding was affirmed by the Colorado Court of Appeals and eventually made its way to the Supreme Court.  

The majority opinion published today was authored by Justice Kennedy and joined by Justices Roberts, Breyer, Alito, Kagan and Gorsuch.  They essentially decided to punt the substantive question of the case and instead rule on procedural grounds.  The majority argued that the Colorado Civil Rights Commission showed hostility against the Masterpiece baker’s religious beliefs, violating their duty not to base laws or regulations on hostility to a religion or religious viewpoint.  Therefore they set the commission's decision aside.  If you stop reading here, you'll know the most important part of the case.  But if you're curious, join me as we explore its meaning and the different justices' takes...

Justice Kennedy pointed to a few key facts:

  • At the time that the baker refused to bake the cakes, same sex marriage wasn't yet legal in Colorado, so the baker may have been justified in his belief that refusals based on same sex marriage did not violate the law.

  • In the civil rights commission hearings, one commissioner stated, “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of 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.” This seemed to be the key indicator that the commission may have held animus to certain religious beliefs and may have ruled based on that.

  • The civil rights commission had previously allowed other bakers to refuse to bake cakes that they found offensive. The background of this similar case, which was hotly debated, is as follows:

  • In what I will call “the Jack case,” a man went to three bakeries and asked each to make a cake “made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] . . . ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’ [Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’ ” All three bakers refused to do the writing on the cakes, but offered to make the bible shapes, and all three made other religious cakes, but said that they would not put the hateful writing on it. Jack took his case to the Colorado Civil Rights Commission also, which held that these refusals did not violate CADA.

Essentially, Justice Kennedy felt that the key facts above showed that the civil rights commission was ruling based on their animus towards the Masterpiece baker's religious beliefs, so he held that the ruling could not be upheld.  However, he explicitly stated that gay people have rights and deserve equality, and that a similar fact pattern today might be held to be discriminatory.  But he wouldn't state for certain what would cross the line.  However, he did indicate that “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression."  "And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”

So, while Justice Kennedy opined on the rights of same sex couples, he took a step back and chose to kick the can down the road to another day...perhaps when our world will be more ready for true and complete justice.  

Curious what the other justices thought?  Read on...

Justice Kagan, joined by Justice Breyer concurred with the majority.  She believed that the commission could have easily fixed the issue by using a different rationale to distinguish the cake refusal cases.  In the Jack case, the refusal was based upon what was being requested – an offensive message – rather than who was requesting it.  The bakers in that case would have refused to provide the cake requested, no matter who asked for it.  In this case, the refusal was based upon the sexual orientation of the requester alone – the baker would make wedding cakes – just not for same sex couples.  Justice Kagan believed that the odd/twisted reasoning by the commission about how offensive the message was indicated that the commission did, in fact, have some animus against the baker's religion, and therefore, she agreed with the majority opinion.  

Importantly, though, Justice Kagan made it clear that discrimination based on sexual orientation - even cakes for weddings was unacceptable: "A vendor can choose the products he sells, but not the customers he serves—no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples.”

On the other hand, Justice Gorsuch, joined by Justice Alito, believed that the baker should have prevailed on the substance as well.  He believed that there was no distinction between the two cake cases, and therefore they should have been decided in the same way.  All of the bakers refused only a specific cake (not all service) based on a personal conviction.  He believed that Justice Kagan and the dissent were zooming in too narrowly by saying it was about what the message was on the cake.  He believed that a wedding cake, in and of itself, sends a message.  Therefore, it was not the court’s place to question whether that message violates the baker’s religious beliefs.  In the Jack case, the civil rights commission assumed that there was no intent to discriminate based on religious belief, but here they assumed that there was intent to discriminate based on sexual orientation.  Gorsuch believed that this was simply an unfair application of the law differently to the same situations.

Justice Thomas, joined by Justice Gorsuch, would have ruled on this case on speech grounds.  He believed that a wedding cake is full of symbolism, and a custom wedding cake is expressive conduct, regardless of the specific design.  Therefore, the public accommodations law would have to withstand strict scrutiny.  Though he did not conduct a strict scrutiny analysis, he essentially indicated that this application of CADA would not be able to be upheld under strict scrutiny and the baker should be allowed to make these refusals.  Essentially, he argued that the court has upheld all kinds of hateful nasty speech, but that’s the point of free speech: “The First Amendment gives individuals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage…If Phillips’ continued adherence to that understanding makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected.”

Finally, Justice Ginsburg, joined by Justice Sotomayor dissented.  They argued that this was a refusal based on a protected class of people – therefore, it was illegal.  The Masterpiece baker makes wedding cakes of all kinds, but simply won’t make them for same sex couples’ weddings based on the sexual orientation of the couple.  The Jack cake case was only about refusal of hateful expression on top of the cake and would have been refused regardless of who requested it.  Here, they didn’t even get to discuss the design of the cake, because the refusal was based on who the requesters were.  And the comments of two commissioners was not enough to eviscerate the decisional process of multiple courts that ruled de novo (with fresh eyes) on the issue.  

So, was it a slam dunk case for LGBT rights?  No.  But did it do a ton of damage?  No.  Ultimately, it simply decided not to decide.