Masterpiece Cakeshop v. Colorado Civil Rights Commission

Notable Items:

• Masterpiece Cakeshop rules free exercise of religion takes precedence over a law of neutral laws of general applicability draft without animus versus Scalia's ruling in Employment Division v. Smith (1990) that a neutral laws of general applicability takes precedence over free exercise of religion.
• Kennedy uses animus [see Lukumi-Hialeah (1993) ] as an element in deciding the constitutional questions.
• Kennedy chooses not to distinguish a law created through animus [see Lukumi-Hialeah (1993) ] compared to law applied with (purported) animus.
• Gorsuch: Like “an emblem or flag,” a cake for a same-sex wedding is a symbol that serves as “a short cut from mind to mind,” signifying approval of a specific “system, idea, [or] institution.” [applicable to all items used at a wedding, including wedding halls, wedding rings, wedding invitations, wedding webpages (see 303 Creative LLC v. Elenis (2023) ), etc. can be refused according to the seller's claim of belief.]
• Thomas' concurrance is his best writing that I have read to date. Unagitated. No snark. Well organized argument. Cites precedents with which he may well disagree. Thomas' argument stands or falls based upon his characterization of making a wedding cake as protected speech.
• Compare United States v. O'Brien: These cases [Grosjean v. American Press Co., 297 U. S. 233 (1936), and Gomillion v. Lightfoot, 364 U. S. 339 (1960)] stand not for the proposition that legislative motive is a proper basis for declaring a statute unconstitutional, but that the inevitable effect of a statute on its face may render it unconstitutional.

Issue(s) Before the Court:

• 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 ....
• The second is the right of all persons to exercise fundamental freedoms under the First Amendment, ....

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and operated by Jack Phillips ....
• Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of 2012.
• Craig and Mullins were planning to marry. At that time, Colorado did not recognize same-sex marriages, so the couple planned to wed legally in Massachusetts and afterwards to host a reception for their family and friends in Denver. [Taking the cake to Massachusetts? Its a wedding cake at a reception, after the fact, not a wedding cake at a wedding.]
• In 2012 he told a same-sex couple that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages ....
• The couple filed a charge with the Colorado Civil Rights Commission (Commission) pursuant to the Colorado Anti-Discrimination Act (CADA), ....
• A full recounting of the facts is available below

Procedural History:

• The couple filed a charge with the Colorado Civil Rights Commission (Commission) pursuant to the Colorado Anti-Discrimination Act (CADA), ....
• Under CADA’s administrative review system, the Colorado Civil Rights Division first found probable cause for a violation and referred the case to the Commission.
• The Commission then referred the case for a formal hearing before a state Administrative Law Judge (ALJ), who ruled in the couple’s favor.
• In so doing, the ALJ rejected Phillips’ First Amendment claims: that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed and would violate his right to the free exercise of religion.
• Both the Commission and the Colorado Court of Appeals affirmed.

Rationale

Kennedy Majority Opinion (Roberts, Breyer, Alito, Kagan, Gorsuch) (18)

• For the reasons just described, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. [State law and regulations were not made by the commissioners...they apply the laws and regulations "calling balls and strikes"]
• Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs.
• The Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside. [remand for proceedings not inconsistent with this decision]
• Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.
• ... the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.
• A full description of the rationale is available below

Kagan Concurrance (Breyer) (4)

• I join the Court’s opinion in full because I believe the Colorado Civil Rights Commission did not satisfy that obligation.
• I write separately to elaborate on one of the bases for the Court’s holding.
• The three bakers in the Jack cases did not violate that law. Jack requested them to make a cake (one denigrating gay people and same-sex marriage) that they would not have made for any customer.
• In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else—-just as CADA requires.
• By contrast, the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple.
• In refusing that request, Phillips contravened CADA’s demand that customers receive “the full and equal enjoyment” of public accommodations irrespective of their sexual orientation.
• ... Colorado can treat a baker who discriminates based on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground.
• But only, as the Court rightly says, if the State’s decisions are not infected by religious hostility or bias. [emphasis added] [BUT Colorado Court of Appeals considered the case de novo. See Ginsburg below. Why is this not determinative for Kagan?]
• Note: As this Court has long held, and reaffirms today, a vendor cannot escape a public accommodations law because his religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait. See Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402, n. 5 (1968) (per curiam)

Gorsuch Concurrance (Alito) (12)

• As the Court explains, the Colorado Civil Rights Commission failed to act neutrally toward Jack Phillips’s religious faith.
• Maybe most notably, the Commission allowed three other bakers to refuse a customer’s request that would have required them to violate their secular commitments.
• In the face of so much evidence suggesting hostility toward Mr. Phillips’s sincerely held religious beliefs, two of our colleagues have written separately to suggest that the Commission acted neutrally toward his faith when it treated him differently from the other bakers-—or that it could have easily done so consistent with the First Amendment.
• As proof, the Division pointed to the fact that the bakers said they treated Mr. Jack as they would have anyone who requested a cake with similar messages, regardless of their religion.
• Later, Mr. Phillips testified without contradiction that he would have refused to create a cake celebrating a same-sex marriage for any customer, regardless of his or her sexual orientation.
• The facts show that the two cases share all legally salient features. [Gorsuch does not distinguish "refusing to make a product for anyone" from "refusing to sell a product to certain people".]
• In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers. [See Note in Kagan concurrance above]
• Even though the bakers knowingly denied service to someone [Jack] in a protected class, the Commission found no violation .... [what class is Jack a member of? Bakers treat all the same]
• For just as cakes celebrating same-sex weddings are (usually) requested by persons of a particular sexual orientation, so too are cakes expressing religious opposition to same-sex weddings (usually) requested by persons of particular religious faiths. [See above "Mr. Phillips testified without contradiction that he would have refused to create a cake celebrating a same-sex marriage for any customer". In the first case, denial of service due to the person. In the second case, denial of service due to the product requested.]
• In both cases the bakers’ objection would (usually) result in turning down customers who bear a protected characteristic.
• Like “an emblem or flag,” a cake for a same-sex wedding is a symbol that serves as “a short cut from mind to mind,” signifying approval of a specific “system, idea, [or] institution.” [applicable to all items used at a wedding, including wedding halls, wedding rings, etc. can be refused according to the seller's claim of belief.]
• It is precisely that approval that Mr. Phillips intended to withhold in keeping with his religious faith.
• In short, when the same level of generality [cakes, wedding cakes, etc,] is applied to both cases, it is no surprise that the bakers have to be treated the same. [Discrimination among customers, not cakes or bakers.]

Thomas Concurrance in part and in judgement (Gorsuch) (14)

• I agree that the Colorado Civil Rights Commission (Commission) violated Jack Phillips’ right to freely exercise his religion.
• While Phillips rightly prevails on his free-exercise claim, I write separately to address his free-speech claim.
• The Court does not address this claim because it has some uncertainties about the record. Specifically, the parties dispute whether Phillips refused to create a custom wedding cake for the individual respondents, or whether he refused to sell them any wedding cake (including a premade one).
• ... the Court of Appeals concluded that Phillips’ conduct was not expressive and was not protected speech.
• This reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak.
• Part I [Review of Expressive Conduct as Protected Speech]
• Although public-accommodations laws generally regulate conduct, particular applications of them can burden protected speech. When a public-accommodations law “ha[s] the effect of declaring ... speech itself to be the public accommodation,” the First Amendment applies with full force. Hurley
• When this law required the sponsor of a St. Patrick’s Day parade to include a parade unit of gay, lesbian, and bisexual Irish-Americans, the Court unanimously held that the law violated the sponsor’s right to free speech. Parades are “a form of expression,” this Court explained, ....
• The parade in Hurley was an example of what this Court has termed “expressive conduct.”
• Thus, a person’s “conduct may be ‘sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.’ ” Texas v. Johnson, 491 U. S. 397, 404 (1989).
• To determine whether conduct is sufficiently expressive, the Court asks whether it was “intended to be communicative” and, “in context, would reasonably be understood by the viewer to be communicative.” Clark v. Community for Creative Non-Violence, 468 U. S. 288, 294 (1984).
• Once a court concludes that conduct is expressive, the Constitution limits the government’s authority to restrict or compel it.
• Part II A [Phillips Engages in Expressive Conduct]
• The conduct that the Colorado Court of Appeals ascribed to Phillips-—creating and designing custom wedding cakes—-is expressive. Phillips considers himself an artist.
• Phillips is an active participant in the wedding celebration. He sits down with each couple for a consultation before he creates their custom wedding cake. He discusses their preferences, their personalities, and the details of their wedding to ensure that each cake reflects the couple who ordered it. [emphasis added]
• To him, a wedding cake inherently communicates that “a wedding has occurred, a marriage has begun, and the couple should be celebrated.”
• Forcing Phillips to make custom wedding cakes for same-sex marriages re quires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],” Hurley, 515 U. S., at 574, or to “affir[m] ... a belief with which [he] disagrees,” id., at 573.
• Part II B
• The Colorado Court of Appeals nevertheless concluded that Phillips’ conduct was “not sufficiently expressive” to be protected from state compulsion.
• Part II B 1 [For-Profit Speech Protected]
• But this Court has repeatedly rejected the notion that a speaker’s profit motive gives the government a freer hand in compelling speech. See Pacific Gas & Elec., supra, at 8, 16 (collecting cases); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 761 (1976) (deeming it “beyond serious dispute” that “[s]peech ... is protected even though it is carried in a form that is ‘sold’ for profit”).
• Part II B 2 [Rejecting Disclaimer Option]
• The Colorado Court of Appeals also erred by suggesting that Phillips could simply post a disclaimer, disassociating Masterpiece from any support for same-sex marriage.
• And again, this Court has rejected it.
• Part III [Distinguishing from O'Brien]
• Although this Court some times reviews regulations of expressive conduct under the more lenient test articulated in O’Brien, that test does not apply unless the government would have punished the conduct regardless of its expressive component. See, e.g., Barnes [v. Glen Theatre, Inc.,] (1991) 501 U. S., at 566–572 (applying O’Brien to evaluate the application of a general nudity ban to nude dancing); Clark, 468 U. S., at 293 (applying O’Brien to evaluate the application of a general camping ban to a demonstration in the park).
• Here, however, Colorado would not be punishing Phillips if he refused to create any custom wedding cakes; it is punishing him because he refuses to create custom wedding cakes that express approval of same-sex marriage. In cases like this one, our precedents demand “ ‘the most exacting scrutiny.’ ” Johnson, 491 U. S., at 412; accord, Holder v. Humanitarian Law Project, 561 U. S. 1, 28 (2010).
• According to the individual respondents, Colorado can compel Phillips’ speech to prevent him from “ ‘denigrat[ing] the dignity’ ” of same-sex couples, “ ‘assert[ing] [their] inferiority,’ ” and subjecting them to “ ‘humiliation, frustration, and embarrassment.’ ” J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 142 (1994); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 292 (1964)
• These justifications are completely foreign to our free-speech jurisprudence.
• “ ‘Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.’ ” Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55 (1988)
• Moreover, it is also hard to see how Phillips’ statement is worse than the racist, demeaning, and even threatening speech toward blacks that this Court has tolerated in previous decisions. Concerns about “dignity” and “stigma” did not carry the day when this Court affirmed the right of white supremacists to burn a 25-foot cross, Virginia v. Black, 538 U. S. 343 (2003); conduct a rally on Martin Luther King Jr.’s birthday, Forsyth County v. Nationalist Movement, 505 U. S. 123 (1992); or circulate a film featuring hooded Klan members who were brandishing weapons and threatening to “ ‘Bury the niggers,’ ” Brandenburg v. Ohio, 395 U. S. 444, 446, n. 1 (1969) (per curiam)
• O'Brien Standard: “[A] government regulation [of expressive conduct] is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” United States v. O’Brien, 391 U. S. 367, 377 (1968).

Ginsburg Dissent (Sotomayor) (8)

• There is much in the Court’s opinion with which I agree. [followed by examples supported by quotations from Kennedy's opinion]
• Note 1: ... the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. THOMAS acknowledges that for conduct to constitute protected expression, the conduct must be reasonably understood by an observer to be communicative. And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive conduct. [emphasis added]
• The Court concludes that “Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires.”
• The different outcomes the Court features do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below.
• Part I [Distinguishing Phillips and Jack]
• The bakers would have refused to make a cake with Jack’s requested message for any customer, regardless of his or her reli- gion. And the bakers visited by Jack would have sold him any baked goods they would have sold anyone else.
• ... Phillips would not sell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others.
• Colorado, the Court does not gainsay, prohibits precisely the discrimination Craig and Mullins encountered. See supra, at 1.
• Note 3: GORSUCH argues that the situations “share all legally salient features.” But what critically differentiates them is the role the customer’s “statutorily protected trait,” played in the denial of service. Change Craig and Mullins’ sexual orientation (or sex), and Phillips would have provided the cake. Change Jack’s religion, and the bakers would have been no more willing to comply with his request.
• What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.
• The Colorado court distinguished the cases on the ground that Craig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorous protection from discrimination.
• Part II
• ... I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins.
• The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.
• Fourth, after the Commission’s ruling, the Colorado Court of Appeals considered the case de novo.
• Phillips’ case is thus far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council, see id., at 526–528. [emphasis added]
• For the reasons stated, sensible application of CADA to a refusal to sell any wedding cake to a gay couple should occasion affirmance of the Colorado Court of Appeals’ judgment.
• I would so rule.

Full Recounting of Facts

• In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception.
• The shop’s owner told the couple that he would not create a cake for their wedding because of his religious opposition to same-sex marriages ....
• The couple filed a charge with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act The Commission determined that the shop’s actions violated the Act and ruled in the couple’s favor.
• The Colorado state courts affirmed ....
• .... this Court now must decide whether the Commission’s order violated the Constitution.
• A list of the material facts is available above

Kennedy Majority Full Argument (Roberts, Breyer, Alito, Kagan, Gorsuch)

• 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 ....
• The second is the right of all persons to exercise fundamental freedoms under the First Amendment, ....
• The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws.
• ... religious hostility on the part of the State ....
• ... the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.
• Part I A [Recounting of Facts]
• Part I B [CADA and its procedures]
• Part I C [Procedural History in more Detail]
• Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips in September 2012, shortly after the couple’s visit to the shop.
• The Civil Rights Division opened an investigation.
• The investigator found that “on multiple occasions,” Phillips “turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception” ....
• ... the [Civil Rights] Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission.
• And the ALJ [Administrative Law Judge] determined that Phillips’ actions constituted prohibited discrimination on the basis of sexual orientation, not simply opposition to same-sex marriage as Phillips contended.
• Phillips raised two constitutional claims before the ALJ.
• ... to create a cake for a same-sex wedding would violate his First Amendment right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed.
• The ALJ rejected the contention that preparing a wedding cake is a form of protected speech ....
• Phillips also contended that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion ....
• Citing this Court’s precedent in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), the ALJ determined that CADA is a “valid and neutral law of general applicability” ....
• The ALJ thus ruled against Phillips and the cakeshop and in favor of Craig and Mullins on both constitutional claims.
• The Commission ordered Phillips to “cease and desist from discriminating against . . . same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples.”
• Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission’s legal determinations and remedial order.
• Relying on this Court’s precedent in Smith, supra, at 879, the court stated that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability” on the ground that following the law would interfere with religious practice or belief.
• The Colorado Supreme Court declined to hear the case.
• Phillips sought review here, and this Court granted certiorari.
• Part II A [Initial Considerations]
• Nevertheless, while those religious and philosophical objections are protected, it is 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.
• And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.
• He [Phillips] argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation. [bake a plain, generic, cake or sell off the shelf] [emphasis added]
• But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case.
• Part II B [Focus on Commission Animus...Not the question before the Court...so remand for further action]
• 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.
• 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.
• ... 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.” [Colorado Civil Rights Commission]
• 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: .... [Kennedy deliberately distorts]
• 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. ... “wording and images [the baker] deemed derogatory,”; “language and images [the baker] deemed hateful,”; “deemed as discriminatory; [closing double quotes missing in original]
• He [Phillips before the Colorado Court of Appeal] 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 Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs. A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness.
• Part II C [Basis of Reversal] page 16
• For the reasons just described, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. [State law and regulations were not made by the commissioners...they apply the laws and regulations "calling balls and strikes"]
• Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs.
• The Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside. [remand for proceedings not inconsistent with this decision]
• Part III [Decision]
• Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.
• ... the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.
• The core of the rationale is available above