Why Masterpiece Cakeshop Was Correctly Decided

The Supreme Court’s decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No.16-111 (June 4, 2018) disappointed both sides by failing to address the the key question presented for decision, namely whether sincere religious objections to same-sex marriage justified a baker in refusing to create a wedding cake celebrating such a marriage. Instead, the court ruled that the Colorado Civil Rights Commission violated the Free Exercise Clause of the First Amendment by demonstrating a “clear and impermissible hostility toward the sincere religious beliefs motivating [the baker’s] objection.” In my view, the case was correctly decided for the following three reasons.

First, as I urged in my blog post of September 14, 2017, the court properly crafted “a narrow opinion which will garner the greatest number of justices who will join it.” One reason for my recommendation was to “Let the free exercise claims develop further in the lower courts.” This approach, which the court chose to follow, wisely avoided a premature adjudication of an important and sensitive constitutional issue, and relieved the court from the criticism it has experienced from its decisions making early determinations declaring a constitutional right to an abortion, Roe v. Wade (1973), as well as to same-sex marriage. Obergefell v. Hodges (2015).

Second, by strongly declaring that religious objections need to be treated fairly by government decision makers without any bias demonstrated toward religious practice, the court sent a strong signal that the current, increasing hostility shown to religious institutions and their practitioners is not acceptable in government decision-making. In one passage, among several others, Justice Kennedy emphasized that “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” To take just one of many examples of a pervasive hostility to religion in some government circles, the City of Philadelphia recently revoked the ability of one Catholic and another Christian agency to continue to place children with foster parents because of their faith-based opposition to same-sex marriage. These two agencies placed nearly 400 children in foster homes in 2017. The city’s action was based on a bias against the two agencies’ religious beliefs, and was implemented despite the city’s making an urgent call to recruit 300 families to provide foster care because of an increasing number of children coming into that system because of the opioid epidemic.

Third, it is questionable whether the baker would have won his case if the broader issue had been reached. Opinions by Justice Kagan and Justice Ginsburg, joined respectively by Justices Breyer and Sotomayor, make it clear that those four justices would have decided that the baker had to conform his practices to a generally applicable anti-discrimination law absent the hostility shown to his religious beliefs by the Colorado Civil Rights Commission. By contrast, Justices Thomas’ concurring opinion, joined only by Justice Gorsuch, would have found that the baker’s free exercise claim would have protected him from being forced to create a cake for a same-sex wedding. In addition, in a separate opinion by Justice Gorsuch, joined by Justice Alito, there is a suggestion, without any explicit declaration, that the baker would possess such a right. It is of interest that Justice Alito did not join in Justice Thomas’ broader concurring opinion, and that Chief Justice Roberts was silent on the issue. As such, there is no evidence that a broader opinion would have resulted in a decision in favor of the baker. This is particularly so since Justice Kennedy, the court’s strongest advocate of gay rights, has several statements in his majority opinion recognizing the necessity “to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods and services.”

Given the majority opinion’s recognition that the proper adjudication of cases pitting religious objections to providing goods and services against the dictates of  anti-discrimination laws requires a close look at all the facts and circumstances, the court was wise to limit its opinion, and to permit the lower courts to decide particular cases based upon their specific facts and circumstances. As such, if and when a conflict arises, the court can revisit the broader questions, with the advantage of insights from the lower courts.

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