Battle Over Religion, LGBT Rights Not Over Yet

Photographer: Andrew Harrer/Bloomberg

Supreme Court narrowly rules in favor of a Colorado baker who refused to bake cake for same-sex wedding

Fact-specific decision avoids tension between free speech, LGBT rights, but more cases waiting in wings

The U.S. Supreme Court June 4 sidestepped the difficult question of whether religious beliefs must give way to state anti-discrimination laws, but the justices may not be able to avoid it for long.

The Colorado commission that found a baker in violation of the state’s anti-discrimination laws for refusing to make a cake for a same-sex wedding showed “clear and impermissible hostility” toward the baker’s religious beliefs, Justice Anthony M. Kennedy wrote for the 7-2 court in Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n. Its decision therefore cannot stand, the court said.

That fact-based determination is unlikely to have implications beyond this case, Eric J. Segall, a constitutional law professor at Georgia State University College of Law, Atlanta, told Bloomberg Law.

But the court has been holding on to a case involving essentially the exact same question for nearly a year now, Jeremy Tedesco, of Alliance Defending Freedom, Scottsdale, Ariz., told Bloomberg Law. The court set that case, Arlene’s Flowers, Inc. v. Washington, to be considered at its June 7 private conference, just after it handed down Masterpiece Cakeshop.

Tedesco represented baker Jack Phillips, and also represents the florist at the heart of Arlene’s Flowers. She, too, refused to serve a gay couple because she has religious objections to same-sex marriage.

We could hear as early as next week if the court will take up that case, Ria Tabacco Mar, of the American Civil Liberties Union, who represented the gay couple in Masterpiece Cakeshop, told Bloomberg Law.

Neutral & Respectful

The decision in Masterpiece Cakeshop “turned on a finding that the Colorado Civil Rights Commission demonstrated hostility toward” the baker’s “religious justification for refusing to bake a cake for a wedding between two men,” Katherine Franke, a professor of law, gender, and sexuality studies at Columbia University Law School, New York, told Bloomberg Law.

The free exercise clause of the First Amendment requires that Phillips receive “neutral and respectful consideration of his claims”, the court said. Colorado failed to do that in this case, Franke said.

Kennedy pointed to specific statements made by the commissioners during the consideration of Phillip’s cases as well as other instances when the commission had allowed bakers to refuse service to anti-gay customers as evidence of the commission’s bias.

But the case left open the bigger question whether anti-discrimination laws can trump religious beliefs, Tedesco said.

Go-Slow Approach

The decision shows the Roberts Court’s—and particularly Chief Justice John G. Roberts Jr.’s—commitment to “go slow” when changing the law, Segall said.

During his confirmation hearing, Roberts suggested that judges should take a minimalist approach to judging, Segall said. And he seems to be generally sticking to that, Segall said.

He pointed to the court’s religious rights case last term, Trinity Lutheran Church of Columbia, Inc. v. Comer, in which the court said that Missouri couldn’t refuse to provide financial assistance to resurface a children’s playground simply because the organization was affiliated with a church.

Justices Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch wanted to make dramatic changes to the First Amendment, Segall said. But Roberts dropped a footnote in his opinion stating that the reasoning only applied to playgrounds, Segall said.

Every rule has an exception, he said, noting that Roberts has not taken it slow on some issues, like voting rights. But in general, Roberts has stuck with his promise to ease into big changes in the law.

Big Exception

That “go-slow” approach may lead the court to take Arlene’s Flowers as a follow-on case.

The cases are similar, with one big exception, Franke said.

The case comes out of Washington state, rather than Colorado, meaning the cases didn’t go through the same tainted process. There’s “no similar evidence of bias in the Arlene’s Flowers case,” she said.

Removing Taint

It’s not clear what Colorado can do to remove that discriminatory taint in this or future cases.

“One of the tricky things about focusing on motive is it’s hard to know when or whether government officials can remedy that impermissible motive,” John Inazu, a professor of law and religion at Washington University School of Law, St. Louis, told Bloomberg Law.

Once “the Court rules something unconstitutional based on ulterior motive, it’s often difficult to show a good faith motive,” he said.

The Supreme Court is grappling with this in the case over President Donald Trump’s travel ban.

The Trump administration argues that its multi-agency review of the policy—prohibiting travel from mostly Muslim-majority countries—removed any discriminatory animus suggested by the president’s campaign statements.

The plaintiffs in that case say the president hasn’t done enough to distance himself—and the policy—from his earlier, discriminatory remarks.

The court is likely to issue a decision in the travel ban case in late June.