On June 4, 2018, the U.S. Supreme Court reversed a decision rendered by the Colorado State Human Rights Commission against Jack Phillips, owner of Masterpiece Cakeshop, saying that the state abused his rights by prosecuting him for discriminating against LGBT couples when he refused to create a custom-designed cake for a same-sex wedding. Richard Baker and Noel Sterett of Mauck & Baker, LLC filed an amicus (friend of court) brief with the U.S. Supreme Court in this case on behalf of a number of Christian business organizations whose members face similar issues concerning free exercise of their religious beliefs in the marketplace. Because issues of human sexuality arising out of the aftermath of the sexual revolution from abortion, to gay marriage, to transgender identity and beyond are creating such division in the church and in the wider society, many have asked what the significance and impact are of the Masterpiece Cakeshop case. Mr. Baker gives his perspective on the implications of the case going forward. 

What is your opinion of this Colorado case?

Though we hoped the Supreme Court would have ruled on the compelled free speech and free exercise of religion defenses that Jack Phillips raised, we were pleased to see that the U.S. Supreme Court recognized the double standard that Christians often face in human rights tribunals. We agree with the holding as far as it goes, believing that the manifest hostility shown by the Colorado Human Rights Commission was entirely inappropriate and that its actions justified the reversal of its finding of discrimination.

What do you believe is the extent and reach of the Masterpiece Cakeshop decision?

Actually, the decision is broader than many have said. For many years, the Free Exercise Clause of the First Amendment has been disfavored. The Masterpiece Cakeshop case, along with several other recent cases, is an important decision, bolstering the protection of the free exercise of religion.

The Court’s ruling, 7-2, reversed the Colorado Human Rights Commission’s finding of discrimination against a Denver baker who objected to creating a wedding cake for a gay couple’s wedding on religious grounds. It did so on due process grounds, reasoning that because the proceedings reflected blatant hostility, not only as reflected in comments from commissioners likening the Denver baker to racists and Nazis, but also in the tribunal’s failure to fairly consider the Denver baker’s sincerely held religious views in making its determination. This hostility, the Court found, was clear from its application of different standards in the religious baker’s case to that of similarly situated secular bakers who refused to create cakes with anti-gay marriage messages.

The Court’s decision is a win in that it reversed the egregious violations of due process (fairness) at every level of Jack Philipp’s proceedings. And procedural due process – assuring fairness and respect for all litigants before a tribunal – is vital. For the impact that a procedural ruling like this could have, think of the Miranda Rights decision and the impact which that procedural due process ruling had on curbing police abuse in forcing confessions to crimes.

Thus, while the Court’s focus on the due process aspect of the case did not resolve the underlying issues raised with regard to whether LGBT public accommodation and anti-discrimination laws ‘trump’ First Amendment rights of free exercise of religion and free speech, it nevertheless sent a clear message in terms of government hostility toward people of faith and their religious beliefs. Given the rough treatment many religious people have received when brought before human rights tribunals all over the country on charges of LGBT discrimination, this ruling sets an important precedent, that the government must fairly apply the standards used in rendering decisions free of governmental viewpoint discrimination.

What is the key takeaway from the decision, particularly for religious-believing business owners?

The facts in every case are important, and in this case, it should always be remembered that Jack Phillips did not refuse to sell to that gay couple a cake. In fact, he offered to sell them anything on his shelves in the store. What he actually refused to do was to lend his creative talents to creating a particular message by designing and decorating a wedding cake with a message that he believed was contrary to the Word of God. That his objections were message-oriented is clear from the fact that he has also refused to create cakes with a number of messages contrary to his understanding of Scripture, including cakes celebrating Halloween, divorce, and even the disparagement of gay persons.

So, contrary to what some commentators are saying, the case does not stand for the proposition that religious persons can willy-nilly refuse to sell items in commerce to gay people, thereby shutting them out of the marketplace. Instead, the limited holding in this case reiterated the basic legal concept of fairness, that the government must fairly apply its standards in rendering decisions to both religious and secular litigants alike. In addition, and quite importantly, is that the 7-2 decision makes clear that free exercise rights apply to commercial businesses as well as churches, religious organizations, and religious individuals. Until now, many human rights tribunals and lower courts have denied religious businesses and commercial artists this important defense. 

How important is the Supreme Court’s holding that opposition to same-sex marriage can, in fact, be rooted in sincere religious belief and not necessarily in pure bigotry or animus? 

It is very important because the Supreme Court has made it clear that the tribunals and courts must respect a conscientious religious person’s objection to same-sex marriage and may not continue to dismiss his or her religious defenses as irrational and per se bigotry. This ruling may help level the playing field for religious persons brought before human rights tribunals for exercise of their sincerely held religious convictions with regard to marriage. This is good news to those religious businesses whose owners sincerely hold religious convictions that may not fall in line with the rapidly changing values in our society. As such, it is a step in the right direction to protecting everyone’s freedom to live within the dictates of his or her conscience.

What will be the next case to reach the Supreme Court, re: the collision between religious liberty and LGBT rights? 

The underling issue remains: will public accommodation (LGBT non-discrimination) laws trump long-established First Amendment free speech and free exercise rights? The Court will soon be confronted with these issues again if it decides to hear another same-sex wedding case, Arlene’s Flowers Inc. v. Washington, which has facts similar to the Masterpiece Cakeshop case that was just decided. Currently, the Arlene’s Flowers case is pending before the U.S. Supreme Court, having just been distributed for conference on June 7th, 2018. If the Court decides to hear the case, the same issues of government-coerced speech and religious free exercise will be before it once again.

As Justice Thomas reflected in his concurrence to the majority opinion in Masterpiece Cakeshop, while the decision did not resolve the issues, it gives religious freedom another day in court to be vindicated.

Thus, the fight for religious freedom is far from over, and we need to keep praying and working actively to protect the religious freedom of those in the marketplace, who for conscience sake, do not want to be compelled to endorse same-sex marriage.

Posted on Tue, June 12, 2018 by Mauck & Baker