Can a business discriminate based on the religion of the owner?
Short answer: No!
The Supreme Court finally released its ruling on the case, Masterpiece Bakery, Et. Al. v. Colorado Civil Rights Commission, Et. Al. To be honest, my first reaction was anger and surprise, but then I read the majority decision, concurrences, and dissent. On its face, and without any analysis or actual reading of the decision, it appears that this decision is a victory for religious freedom and the religious right and a loss for the LGBTQA+ community and public accommodation laws in general. But that is not what this ruling is or will be purported to be by those who are against LGBTQA+ rights and same-sex marriage. Importantly, I need to point out that at the time of the alleged discrimination it was 2012 and same-sex marriage was not legal in Colorado and Obergefell and Windsor had not been decided by the Supreme Court. To be clear, this ruling is narrow and specific given the facts and circumstances in this particular case and is very unlikely to set future precedent or be used to justify LGBTQA+ discrimination.
Justice Kennedy, who is famous for being the deciding vote in many cases and also penned the Obergefell decision, wrote the majority opinion for the Court. The Justices voted 7 – 2 in favor of the baker, Jack Phillips. Phillips won, but the LGBTQA+ community did not lose. This decision was decided on a technicality. Kennedy reaffirmed the longstanding rule that states can prevent the harm that discrimination causes to individuals and society. It was also made clear that business owner’s religious objections are protected:
“Nevertheless, while those religious and philosophical objections are protected, it is, as 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.”
Colorado’s Anti-Discrimination Act is legal and valid as are other state and local anti-discrimination acts and Phillips does not have a right to discriminate and override the state’s anti-discrimination laws. Unfortunately, Virginia has no such law protecting the LGBTQA+ community.
In my opinion, Colorado Civil Rights Commission is to blame for this ruling. The ruling hinges on the treatment of Phillips’ religious viewpoints by the Commission and Court of Appeals and not on whether or not a business can discriminate based on the religious views held by the owner. The Court essentially ignored that question. Members of the Commission and Court of Appeals made comments that the Court interpreted as hostile to Phillips and his religious beliefs. By doing so, the Court determined that the Commission and Court of Appeals did not adjudicate Phillips’ case with fairness and impartiality and this case was treated differently than similar cases, so the decision was overturned.
Looking closer at the majority opinion, they use specific statements from commissioners on the Civil Rights Commission that were made in on the record in full, public meetings. The majority took these statements to be hostile to Phillips’ sincerely held religious beliefs. The commissioners stated that religious viewpoints cannot be in the public or business domain. The Court majority saw this as an implication that those with religious beliefs are not fully welcome in the business community in Colorado. The First and Fourteenth Amendments prohibit the federal and state from discriminating against freedom of religion. The Colorado anti-discrimination law also prohibits discrimination based on religion.
The other similar cases brought before the Colorado Civil Rights Commission were cases involving a customer asking bakers for anti-gay and anti-same-sex marriage cakes that included religious text. The three cases were brought by the same individual and he lost every case before the Colorado Civil Rights Commission. These cases were decided because the baker in each case said the requested cake included “wording and images [the baker] deemed derogatory” and also hateful and discriminatory. The Commission based their decision in this case by attributing the speech to the customer, not the baker. This contrasted how they attributed the speech in the other three cases by saying the speech was the baker’s not the customer’s. Phillips protested this disparity and the Court of Appeals addressed the disparity in passing and only mentioned it in a footnote in its ruling.
Justice Kagan’s concurrence addressed how Colorado could have ruled against Phillips and avoided any religious justification by a plain reading and neutral application of the law. The cases involving the cakes that the bakers wouldn’t make based on what they deemed offensive and discriminatory was neutral because they wouldn’t have made those cakes for anyone, regardless of religion. In this case, Phillips makes wedding cakes, solely for marriages he deems as valid because of his religion, those between a man and a woman. He did not allow Mullins and Craig, or any other same-sex couple, to receive the “full and equal enjoyment” of the public accommodations because of sexual orientation which is against the Colorado Anti-Discrimination Act.
Justice Ginsburg again lives up to her notoriety. In her dissent, she notes that she agrees that a religious objection does not allow business owners to discriminate under a generally applicable public accommodations law. She points out that the hostility against religion and different outcomes of the cases by the Commission does not constitute the hostility that the Court previously used to show a free-exercise of religion violation and ultimately does not justify the reversal of the case. Craig and Mullins did not ask for any specific language regarding same-sex marriage on the cake, in fact they never reached the point of discussion on decoration, but were simply denied because it was for a same-sex wedding reception. In contrast to the other cases, the bakeries made cakes with Christian and religious symbols but would not make one with what they deemed hateful messages and had denied other people cakes with hateful messages. Phillips denied all same-sex marriage wedding cakes because of sexual orientation, not a particular message.
Ginsburg said that it is irrelevant if Phillips generally sells cakes and baked goods to members of the LGBTQA+ community because he would not provide a good or service to a homosexual couple that he provides to heterosexual couples. Phillips declined to make the cake because he objected to the identity of the persons who were requesting it and the Commission found that the message in a cake for Craig and Mullins was not offensive like the cakes in the other three cases. Ginsburg argues that the statements of one or two commissioners should not overcome the refusal to sell a wedding cake to this couple. She also points out that the Court of Appeals heard the case, de novo, which means it decided the issues without reference to any legal conclusion or assumption made by the previous court that heard the case.
Between the statements of the commissioners, which inferred hostility toward Phillips’ religious views, and the disparate treatment of the speech in the similar cases is what caused the majority of Justices to side with the baker. They didn’t rule if Philips can discriminate against same-sex couples who are seeking a wedding cake. Thankfully, they reiterated that the state laws against discrimination are valid and that business owners cannot use religion to deny any protected persons equal access to goods and services. Unfortunately, only 22 states protect against discrimination against sexual orientation and only 19 protect against discrimination based on gender identity. There is a lot of work to be done to protect LGBTQA+ persons and rights, nationwide. Congress needs to pass the Equality Act which adds sexual orientation and gender identity to the Civil Rights Act of 1964 and updates the public spaces covered under current law.
About Rachel Anderson
Rachel Anderson, Esq. is an Attorney at Chesapeake Legal Group, PLLC who also specializes in estate planning and administration, business law, and contracts. Ms. Anderson represents clients throughout Hampton Roads and can be reached at Rachel@chesapeakelegalgroup.com or 757-410-7943.