Jul 17, 2018

Wedding cakes, flowers and travel bans

Given the opportunity in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission to balance gay rights and religious beliefs, the U.S. Supreme Court ducked the dispute when it decided the case on very narrow grounds.

Citing religious beliefs, Colorado baker Jack Phillips refused to create a custom wedding cake to celebrate the marriage of Charlie Craig and Dave Mullins. Believing his decision was based on their sexual orientation, Mr. Craig and Mr. Mullins filed a charge of discrimination with the Colorado Civil Rights Division. When investigating the charge, the state investigator discovered Phillips refused to sell custom wedding cakes to other same-sex couples. After the Civil Rights Commission found probable cause the baker had violated the Colorado Anti-Discrimination Act, it ordered the baker to stop discriminating against same-sex couples.

Phillips appealed the administrative decision to the Colorado Court of Appeals which affirmed the Commission’s legal determinations and remedial order. Relying on a U.S. Supreme Court precedent, the Colorado court held that “the Free Exercise Clause ‘does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.’” Dissatisfied with the outcome, Phillips appealed to the U.S. Supreme Court, declaring his freedom of speech and free exercise of religion were violated. The U.S. Supreme Court determined that the Colorado Commission was neither neutral nor respectful when considering Phillips’ religious views and reversed the decision.

For those seeking clarity, the Supreme Court’s decision was a disappointment because it gave no direction as to how to balance the rights of same-sex oriented people to equal access to services, products and public accommodations with the rights of free speech and free exercise of religion. Written by Justice Kennedy, the majority opinion noted that “religious and philosophical objections do not allow business owners to deny protected people equal access to goods, services and public accommodations.” He also observed that the Colorado law exists to protect gays and others falling into protected groups and ensures they are able to acquire products and services on the same terms and conditions as other members of the public. And yet notwithstanding this language, the Court decided to focus on the actions of the Commission.

Justice Kennedy worried “purveyors of goods and services who object to gay marriages for moral and religious reasons [would] put up signs saying ‘no good or services will be sold if they will be used for gay marriages.’”  He recognized “this would impose a serious stigma on gay persons." Yet the Court still dodged the main issue of determining if the Colorado Commission’s actions were inconsistent with the First Amendment’s guarantee that law must be applied in a manner that is neutral toward religion.

When writing his decision, Justice Kennedy cited liberally from the concurring opinion of Justice Scalia in Church of Lukumi Babalu Aye, Inc. v. Hialeah1 where Justice Scalia had stated that the Constitution “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must remember their own high duty to the Constitution and to the rights it secures." 2 Justice Scalia identified factors relevant to the assessment of governmental neutrality including “contemporaneous statements made by members of the decision making body.”

When Masterpiece punted, many pinned their hopes on Arlene’s Flowers, Inc. dba Arlene’s Flowers & Gifts, Inc., et al. v. Washington, et al.,4  where a florist in Washington State refused to supply flowers for a same-sex wedding based on her religious beliefs. The Court again was asked to balance the florist’s First Amendment rights with the civil rights of the gay couple. Dodging the issue, the Supreme Court sent the case back to Washington State for a Masterpiece evaluation of the religious neutrality of the deciding forum.    

In a third recent action, the U.S. Supreme Court in Trump v. Hawaii upheld the third iteration of President Trump’s Executive Order, the travel ban for visitors from several countries. Basing its decision on national security grounds, it expressed deference to the executive branch without regarding the anti-Muslim statements made by Donald Trump. In a blistering dissent, Justice Sotomayor repeated the directives offered by Justice Gorsuch in his concurring opinion in Masterpiece, which stated “It is in protecting unpopular religious beliefs that we prove this country’s commitment to service as a refuge for religious freedom.” In her dissent, Justice Sotomayor repeated the many anti-Muslim comments and tweets made by President Trump to demonstrate how his Executive Order had been based on his religious animus against Muslims.

In this term, the balancing of religious beliefs, free speech and anti-discrimination policies were not decided but the weight given to anti-religious bias appears to have been inconsistently evaluated by the Supreme Court.

Contact a Chuhak & Tecson Employment Law attorney to ensure your organization has policies, handbooks and manuals that include unbiased language to cultivate the very best business practices when providing services or products to your customers or clients.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by: Jeralyn H. Baran, Principal

1 Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520 (1993)
2 Id. at 547
3 Id. at 540

4  Arlene’s Flowers, Inc. dba Arlene’s Flowers & Gifts, Inc., et al. v. Washington, et al., Case No. 17-108