By Alon Harnoy, Esq. and Maxine Wiesenfeld, Intern 

On June 4th, 2018 The United States Supreme Court came to a 7-2 decision that made some raise their eyebrows. The decision was in favor of Jack Phillips, a talented baker and owner of Masterpiece Bakeshop, who in 2012 opted not to bake a cake for the wedding of Charlie Craig and Dave Mullins, a homosexual couple. Phillips claimed that he would not make a cake for their wedding due to his religious beliefs as he felt that creating this cake would have him be involved in and endorsing the wedding celebration, something that his religion prohibits. He added as well that at the time, marriage of homosexual couples was illegal in the state of Colorado which was another reason he chose not to make the cake for the celebration. The couple filed a discrimination claim against Phillips saying they were denied the access to services due to their sexual orientation.  The Colorado Civil Rights Commission, in acting pursuant to the Colorado Anti-Discrimination Act, found that Phillips’s actions were prohibited and required him to stop discriminating against same-sex couples by not providing the same services to them as he would to a heterosexual couple. In addition, they also required him to hold staff training on the Public Accommodations policies of the Colorado Anti-Discrimination Act, change company policies to comply with this and to provide quarterly reports for a two year period listing people who were denied services, why they were denied services and the remedial actions taking for those cases. The decision made by the Colorado Civil Rights Commission was subsequently affirmed in the US Court of Appeals.

On June 4th, 2018, the Supreme Court overturned the US Court of Appeals, ruling in favor of the Colorado baker, Jack Phillips, opining that he was treated unjustly by the Colorado Civil Rights Commission, noting that such Commission showed elements of a clear and impermissible hostility toward the sincere religious beliefs moti­vating his objection.  The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to pro­tect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amend­ment, as applied to the States through the Fourteenth Amendment.  In other words, we have a clash of two freedoms, the freedom of speech and the free exercise of religion.  Refusal to sell just an ordinary cake to a gay couple is prohibited, but the additional elements of use of artistic skill to design of a cake with words or images celebrating the marriage that have religious significance to the baker, bring about the concern over free exercise of religion, that the Supreme Court ultimately held in favor of the baker.

The Supreme Court contrasted other cases in which the Colorado Civil Rights Division gave storekeepers latitude to decline to create specific messages the store­keeper considered offensive, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages.

In writing her dissent, Justice Ruth Bader Ginsberg (with Justice Sotomayor joining such dissent) says that what made the prior bakers’ experience in refusing offensive messages different from that of current Phillips case, is that in the prior case the customer wanted the use of explicit forms of expression and messages on the cakes, while in the current case there is no mention of an explicit message or expression, so the customers just wanted a specific good – namely wedding cake. The dissent, therefore argues that the way in which the Colorado Civil Rights Commission treated Phillip’s situation was just and a good application of the Colorado Anti-Discrimination Act. This raises questions over whether this wedding cake would be considered a form of artistic expression, one that Phillips has the right to refuse to create based on his religious beliefs or just an ordinary wedding cake where Phillips cannot refuse.

The majority opinion, ruling in Phillip’s favor, would suggest that this is something covered by his freedom of expression, as seen furthermore in Justice Gorsuch’s concurrence in which he eloquently states, “It is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding cake is just like any other—without regard to the religious significance his faith may attach to it—than it would be for the Court to suggest that for all persons sacramental bread is just bread or a kippah is just a cap.” Justice Ginsburg, in the dissent, however furthers the stance that the messaging of the cake that was requested of Phillips was not the issue, rather, “Craig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorous protection from discrimination.” The question here now is, will this decision sit as a precedent for future cases of its kind, or is this a different situation? There are arguments on both ends of this issue.

There are various reasons one may argue that this case will have an impact on the future of cases dealing with LGBTQ discrimination and perhaps was not a specific unique situation.

  • This was not the first time Phillips turned away customers based on sexual orientation. When conducting their investigations, the Colorado Civil Rights Commission found that this was not the only situation in which Phillips denied services to a customer due to sexual orientation. It was discovered that on various other occasions he opted not to make celebratory wedding cakes for same-sex couples due to his held belief that he could not partake in what was against his religion. This being a repeated issue can have an impact on future situations as it is seen that some may say that action was not taken multiple times.
  • The decision made by the Colorado Civil Rights Commission should have been a reasonable application to the Colorado Anti-Discrimination Act. It is stated in the Colorado Anti-Discrimination Act that “It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.” Colo. Rev. Stat. §24–34–601(2)(a) (2017).” According to this Act and according to the dissent of this case, the actions made by Phillips to deny this couple a cake should have been seen as a violation of the Act and therefore the actions taken by the Commission should have been seen as reasonable. Because these rules were not held to be applied justifiably, future cases of the like may then be decided similarly as this could set an example.
  • Services were denied to a gay couple. Although Phillips claimed both that the couple was denied services because it interfered with both his religion and the law at the time for a homosexual couple to get married, the fact still stands that they were a homosexual couple and he felt that he could not provide the services. The outcome of this case, some may argue, that the baker’s freedom of religion and expression took priority over the couple’s right to services.

On the other hand, there are many valid reasons that the outcome of this case will not set a precedent for future cases dealing with LGBTQ rights.

  • The focus of this case was not so much the explicit actions of Phillips, but rather how the Commission treated him. This case focused on the decision that the Colorado Civil Rights Commission treated Phillips unfairly when coming to their decision that he would have to serve all customers regardless of their sexual orientation, change company policies, have staff training and provide the quarterly reports of customers who were denied services. The Court found that this was the main issue at hand and that the Commission was violating Phillip’s rights of religion. This case can potentially be seen as a religious tolerance case and less of a LGBTQ rights case. Therefore, this case should not be precedent for future LGBTQ rights cases but rather discussed in the sense of a religious tolerance case.
  • Did not create a right to discrimination based on sexual orientation. In the majority opinion, Justice Kennedy states, “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”. It is stated numerous times throughout the opinion that this dealt with the freedom of religion. The case did not state anywhere that discrimination against those with a certain sexual orientation should be permissible. This is yet another reason that this case should not serve as a model for future cases that deal with discrimination against LGBTQ people.
  • This should hopefully not be an issue that arises in the future. In the opinion, Justice Kennedy explicitly says that in the future cases like this should not be an issue because bodies of legislation such as in this case, the Colorado Civil Rights Commission should be acting with a greater sense of religious tolerance and be more understanding of religion and beliefs held by people. Justice Kennedy held that issues of this type should not be dealt with in the way the Commission did, but rather through religious tolerance. Because of this, this should not hold as a precedent case as a situation in which someone is treated in a certain way due to religious intolerance should not occur.

This article has been featured on Ynet (in Hebrew) – see link below:

https://www.ynet.co.il/articles/0,7340,L-5295250,00.html

 

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