Since the Supreme Court of the United States handed down its opinion on June 4 in Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1723 (2018), many an LGBT rights attorney have been asked what does it all mean. Certainly, media outlets have tried their hands at distilling it down into 30-second sound bites, some better than others. At least to this LGBT rights attorney, several members and allies of the LGBT community have expressed concern that, despite what the technical legal import may be, some anti-LGBT individuals in their communities will be emboldened and act accordingly. Interestingly, all sides of the political spectrum appear to have become emboldened. We have seen recent news stories of employees and owners of establishments open to the public deny service to patrons with whom they disagree politically. Woe to the patron wearing a MAGA hat or the gay couple in a dive bar.
Many of us have heard that the Masterpiece Cakeshop decision was narrow and limited to its facts. That is essentially correct. Former Justice Anthony Kennedy, writing for the majority, ruled in favor of the Colorado baker, who refused to create a cake for the wedding of a gay couple. Justice Kennedy reasoned that, because one or two of the commissioners at the Colorado Human Rights Commission (where the lawsuit began) made biased comments against the baker’s assertion of a sincerely held religious belief against gay marriage, the government acted with hostility to the religious beliefs of the baker and in a manner that passed judgment upon the legitimacy of the baker’s religious belief. This is contrary to the requirements of the free exercise clause of the First Amendment. Additionally, Justice Kennedy reasoned that the Colorado Commission decided other similar cases under different standards, resulting in dissimilar rulings. For these procedural reasons, the Court found in favor of the baker (concurring opinions by other justices agreed with the ultimate ruling, but not necessarily the detailed reasoning).
Fortunately or unfortunately, the Court did not issue a ruling on the ultimate issues in the case: “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.”
Many of us may wonder how this is even an issue. Several of you readers may have grown up during the civil rights era of the 1950s and 1960s. And several of you readers are at least well aware of that history. The Supreme Court decided the religious expression versus public accommodation issue many decades ago, ruling that non-religious entities open to the general public cannot deny services to individuals based on the color of their skin, despite any sincerely held religious beliefs. Freedom from discrimination trumps a religious right to discriminate. The same logic would seem to apply to the category of LGBT individuals. But, as many in the legal profession know, the Court tends to avoid ruling directly on such hot button issues if it can (although many recent and not-so-recent exceptions come to mind).
However, the Court wholly deflected the issue of whether creating a wedding cake constitutes artistic expression protected as speech under the First Amendment. This author, for one, finds this issue to be a much greater legal minefield for the Court, which deftly sidestepped the issue entirely. But this battle will likely continue for advocates who see a more favorable Court in the future.
So what do we as lawyers take from this decision? First, on both sides of the bar, lawyers should look at the procedural record for any religious animus to bolster their position in these types of public accommodation suits. Second, the ultimate issue of freedom from discrimination versus a religious right to discriminate against the non-heterosexual community is still technically up in the air. Third, the issue of protected speech versus commercial activity remains at the status quo, that is, vague and fact specific. Of note, in Washington’s own ‘public accommodation versus religious freedom case,’ State v. Arlene’s Flowers, Inc., 187 Wn.2d 804, 820, 389 P.3d 543, 551 (2017), which has been remanded by SCOTUS in light of its Masterpiece Cakeshop ruling, an attorney for the gay plaintiffs has informed certain WSBA members that they feel confident the WA Supreme Court ruling in favor of the gay couple seeking flowers for their wedding will still hold despite the Masterpiece Cakeshop ruling.
And what do we as human beings take from this decision? It is this author’s opinion that this decision presents a larger lesson pertinent to this current political climate. Whether or not one agrees that certain Colorado Commissioner comments demonstrated bias and hostility, we should now better understand that there is no place in reasoned and open debate for vitriol and hostility. If we wish to change hearts and minds, to any position, personal attacks and lack of empathy never work. Anger is easy and ultimately unsuccessful. Compassion and open-minded discussion are hard but often fruitful.