Trigger Warning!!!1! :
If I'm a Christian interior decorator, do I have the right to refuse to decorate the living room of a married gay couple because my deep and sincere religious beliefs say that their marriage is an abomination? After all, I am exercising my creative talents; it's 'my own voice' being used in the choice of color combinations and textiles, etc. in a room where this couple co-habit and entertain guests. How about a Christian house painter? It's her 'own voice' being used in the presentation of body color and trim accents eg; whether the fascia board gets the body color or a contrasting or complimentary color on a house where this couple publicly lives in sin for all to see. Or a Christian caterer--does he have the right to refuse to cater a wedding celebration? After all, it's his 'own voice' being used in how the canapes are artistically arranged on the platters.To Phillips, his claim that using his artistic skills to make an expressive statement, a wedding endorsement in
his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs.
[Page 2 of PDF]
Kennedy's decision doesn't really address this issue. It does acknowledge that allowing Phillips to refuse service to the same-sex couple could lead to allowing others to do the same but offers no remedy. Kennedy appears to tacitly accept that somehow Phillips work as a baker is clearly distinguishable from say, that of a caterer or an interior designer.
Is there a legitimate parallel between a cake with an explicit anti-gay message and a wedding cake? The US Supreme Court seems to be implying that there is.Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages.
[Page 2 of PDF]
These characterizations of the commission's approach are questionable, but perhaps they'll be substantiated with some quotes from the proceedings later in the decision.That [neutral and respectful] consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.
...
The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. But the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same.
[page 2 of PDF]
This sounds remarkably like a justification for what conservatives describe as 'judicial activism.' See previous questions regarding various service craftspeople and their work. If baking and decorating a wedding cake (particularly one without any inscribed message or political symbolism) is an exercise in protected speech, why not making radish roses and arranging canapes on a platter, etc?The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.
[Page 5 of PDF, 2 of majority opinion]
Except we know that none of these 'endless' possibilities are necessarily pertinent to the case before the court. Phillips was only asked to make a wedding cake; there was no mention of attending the wedding, nor of putting religious words or decorations on the cake.The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to
attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless.
[Page 5 of PDF, 2 of majority opinion]
Again, this is an important point. How will 'religious neutrality' be defined, and how will the commission's deliberations be determined to have violated 'religious neutrality'?When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.
[Page 6 of PDF, 3 of majority opinion]
Here I will mention that on page 7 of the PDF, 4 of the majority opinion, Kennedy gives a very clear description of Craig and Mullins' visit to the Masterpiece Cakeshop, which agrees completely with the description I posted earlier from the Colorado court's ruling. If somebody had actually read Kennedy's opinion, one wonders why they would believe that Phillips had been asked to decorate the cake in any specific way, for instance by 'depicting a same sex couple.'
The court acknowledges the possible negative result from supporting Phillips' assertion of a right to refuse service to same-sex couples in regards to wedding cakes.
Now we get to the question of 'religious neutrality.'When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on
moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.
[Page 13 of PDF, 10 of majority decision]
Apparently it wasn't acceptable for the commisioner to refer to historical facts: religion has been used to justify negative and harmful behavior. Kennedy believes that doing so showed a lack of 'religious neutrality.' The question is whether the commissioner was deploring the negative and harmful behavior or the religion which was used to justify that behavior. Kennedy chose the latter; I don't think that he actually justifies his choice. The people who used religion to justify slavery were invoking their sincerely held religious beliefs but generally in the US it's slavery that is considered deplorable, not the Christian religion. I think that Kennedy latched onto the words of the commissioner as a club to beat down the decision of the commission, but it seems to me that his reasoning is suspect at best.The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The
Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection. That hostility surfaced at the Commission’s formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips’ case. At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state.” Tr. 23. A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.” Id., at 30. Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.
On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated:
To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and 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.” Tr. 11–12.
[Pages 16-17 of PDF, 13-14 of majority decision]
Kennedy continues to use his club to beat down the previous decisions. He fails to acknowledge that perhaps the other commisioners and the subsequent courts simply don't agree with his interpretation--that they see the commissioner's statements as condemning the use of religion to justify harmful behavior rather than condemning religion itself.The record shows no objection to these comments from other commissioners. And the later state-court ruling
reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.
[Page 17 of PDF, 14 of majority decision]
Previously Kennedy glosses over the fact that Phillips was never asked to present any sort of message on the cake, and here he uses his own failure to address a fact in evidence to facilitate his equating the Jack cases with the Masterpiece Cakeshop case. I find this highly questionable. In the Jack cases, the bakers refused service because of the specific message requested. In Masterpiece Cakeshop, the baker is refusing service because he personally doesn't like same-sex marriages--he was never asked to deliver a specific message.Another indication of hostility is the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission. As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included “wording and images [the baker] deemed derogatory,” Jack v. Gateaux, Ltd., Charge No. P20140071X, at 4; featured “language and images [the baker] deemed hateful,” Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or displayed a message the baker “deemed as discriminatory, Jack v. Azucar Bakery, Charge No. P20140069X, at 4.
The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brownies,” pp. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections.
[Page 18 of PDF, 15 of majority decision]
I think this is weaseling. The bakers who refused Jack's request stated that their reasons for refusing were the offensive nature of the messages he asked them to inscribe. It wasn't the government who refused to create the cakes for Jack; all the commission did was acknowledge the bakers' reasons for refusing his request, which were in fact of a different nature than Phillips' reason for refusing service to Craig and Mullins. That difference was the rationale cited by the commission and the Colorado courts that upheld its judgement, and it looks to me like Kennedy is ignoring that to focus on a purposeful misrepresentation of what took place.Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers’ conscience-based objections as legitimate, but treated his as illegitimate—thus sitting in judgment of his religious beliefs themselves. The Court of Appeals addressed the disparity only in passing and relegated its complete analysis of the issue to a footnote. There, the court stated that “[t]his case is distinguishable from the Colorado Civil Rights Division’s recent findings that [the other bakeries] in Denver did not discriminate against a Christian patron on the basis of his creed” when they refused to create the requested cakes. 370 P. 3d, at 282, n. 8. In those cases, the court continued, there was no impermissible discrimination because “the Division found that the bakeries . . . refuse[d] the patron’s request . . . because of the offensive nature of the requested message.” Ibid.
A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness.
[Pages 18-19 of PDF, 15-16 of majority decision]
I will note again, because I think it's one of the most important points in the ruling, that though it was never defined by Kennedy, apparently 'religious neutrality' is understood by the US Supreme Court in this case as avoiding any mention of or comment on on harmful things done in the name of religion.
