A shorter (and rather less argumentative) version of this post appeared on the Theos website.
Masterpiece Cakeshop Ltd is a bakery in Colorado owned and operated by Jack Phillips, a devout Christian. In 2012, a same sex couple, Mr Craig and Mr Mullins, wanted to order a cake for their wedding reception but Mr Phillips refused because of his religious opposition to same sex marriage – which the State of Colorado did not itself recognise at the time. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation in violation of Colorado’s Anti-Discrimination Act and the matter ultimately came before the Court of Appeals of Colorado, which found in favour of the Civil Rights Commission.
On 4 June, in Masterpiece Cakeshop Ltd et al v Colorado Civil Rights Commission et al 584 U. S. __ (2018) 3, the US Supreme Court (aka SCOTUS) reversed the Colorado Court of Appeals by 7-2, holding that the Colorado Civil Rights Commission’s actions in assessing Mr Phillips’s reasons for declining to make a cake for a same sex couple’s wedding celebration violated the First Amendment to the US Constitution, which declares that
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The majority held that, while the laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, religious and philosophical objections to gay marriage were protected views and, in some instances, protected forms of expression. Colorado state law could protect gay persons in acquiring products and services on the same terms and conditions as were offered to other members of the public – but it had to be applied in a manner neutral toward religion.
The majority concluded that Mr Phillips’s claim that using his artistic skills to make a statement that would, in effect, endorse something to which he was opposed on religious grounds engaged the freedom of speech element of the First Amendment. The majority also noted that in 2012 – the time at which the disputed events had taken place – the State of Colorado did not recognise the validity of gay marriages and that it was not until 2015 that SCOTUS itself handed down judgment in Obergefell v Hodges, in which it ruled that the right of same sex couples to marry was protected by the Due Process and the Equal Protection Clauses of the Fourteenth Amendment to the US Constitution. So there was some force in Mr Phillips’s argument that he had not been unreasonable in believing that his decision had been lawful at the time.
Perhaps more controversially, the majority of the Court also took the view that the Colorado Civil Rights Commission’s treatment of Mr Phillips’s case had shown “elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection” to an extent that called into question the Commission’s fairness and impartiality:
“Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. 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. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires” [emphasis added].
There had also been a difference of treatment as between Mr Phillips’s case and the cases of other bakers with objections to anti-gay messages who had been successful before the Commission.
Writing for the minority, Justice Ginsburg – with whom Justice Sotomayor agreed – saw the question simply as this: “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”. She was particularly scathing about the majority’s views on the impartiality or otherwise of the Colorado Civil Rights Commission, pointing out that the proceedings as a whole had involved “several layers of independent decision-making, of which the Commission was but one”, culminating in the examination of the case de novo by the Colorado Court of Appeals. In short, “the comments of one or two Commissioners” were not really relevant to the issue before SCOTUS.
In the first decision to be handed down after Masterpiece Cakeshop that addresses similar issues, the Arizona Court of Appeals has largely upheld the rights of a same sex couple. In Brush & Nib Studio LC v City of Phoenix (AZ App, June 7, 2018), the owners of an art studio that designs wedding products refused to create customer-specific items for same sex weddings on grounds of their Christian religious beliefs and sought an injunction against Phoenix’s public accommodation anti-discrimination law being applied to their business. Rejecting their free speech argument, the Court said in part that
“the conduct at issue is not the creation of words or images but the conduct of selling or refusing to sell merchandise—either pre-fabricated or designed to order—equally to same-sex and opposite-sex couples. This conduct, even though it may incidentally impact speech, is not speech. Further, allowing a vendor who provides goods and services for marriages and weddings to refuse similar services for gay persons would result 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.’ Masterpiece Cakeshop, Ltd., slip op. at 10.”
“Appellants have failed to prove that Section 18-4(B) substantially burdens their religious beliefs … Appellants are not penalized for expressing their belief that their religion only recognizes the marriage of opposite-sex couples. Nor are Appellants penalized for refusing to create wedding-related merchandise as long as they equally refuse similar services to opposite-sex couples. Section 18-4(B) merely requires that, by operating a place of public accommodation, Appellants provide equal goods and services to customers regardless of sexual orientation. Appellants are free to discontinue selling custom wedding-related merchandise and maintain the operation of Brush & Nib for its other business operations. What Appellants cannot do is use their religion as a shield to discriminate against potential customers” [emphasis added].
[With thanks to Howard Friedman.]
Inevitably, the majority judgment has already come in for a fair amount of academic comment on social media. Neil Foster, for example, in a careful analysis of the judgments in Law and Religion Australia, said that the outcome was “clearly correct” and concluded that “there are a number of important affirmations which support religious freedom”, while Robert Ward on the UK Human Rights Blog described it as “a narrow ruling which ducks the question of whether Mr Phillips’ conduct was actually discriminatory”. Ronan McCrea of UCL, on the other hand, tweeted that the majority decision was “a mess” and noted that SCOTUS had not, in fact, decided the core issue: can religious freedom give an opt-out from anti-discrimination law?
Not being any kind of specialist in US constitutional law, I am very reluctant indeed to be drawn into analysing the judgments in any great detail – except to say that I thought that the prejudices (or otherwise) of the Colorado Civil Rights Commission seemed largely irrelevant to the issue before the Supreme Court, given that the case was examined de novo by the Colorado Court of Appeals. Did the majority of SCOTUS seriously believe that the appeal process was tainted by prejudice on the part of the appeal judges? On the other hand, writing on the Oxford Human Rights Hub Luke A Boso takes the opposite view from mine, arguing that
“The Court’s searching inquiry into the Commission’s neutrality—or hostile intent—marks an unusual and promising turn in anti-discrimination law. Since Washington v Davis, a basic tenet of constitutional scrutiny has been that ‘a law having a discriminatory impact, but devoid of any facial classification, will be subject only to rational basis review, regardless of the group affected by the discrimination.’ Discriminatory intent, however, is notoriously difficult to prove.”
But be that as it may, comparisons are inevitably going to be made between Masterpiece Cakeshop and Lee v McArthur & Ors  NICA 29, in which – as all readers of this blog will know – Mr Lee ordered a cake with the QueerSpace logo and the slogan ‘Support Gay Marriage’ only to have his order subsequently refused by Ashers Baking because, he was told, it was a “Christian business” and should not have accepted his order in the first place. His claim of discrimination, contrary to the terms of the Equality Act (Sexual Orientation) Regulations (NI) 2006 and of the Fair Employment and Treatment (NI) Order 1998 in respect of religious and political belief, succeeded in both the County Court and the Northern Ireland Court of Appeal but was subsequently appealed to the Supreme Court, which heard the oral arguments at the beginning of May and is currently considering its judgment.
Whatever the rights or wrongs of either case – and however similar their facts may appear – I would argue that the First Amendment to the US Constitution and the relevant Northern Ireland legislation provide very different contexts within which to consider them. The First Amendment is couched in very general terms, while the two Northern Ireland Orders are very specific, both as to “sexual orientation” and as to “religious belief or political opinion”.
I would not presume to predict what the UK Supreme Court will decide, not least because the case turns on the competing claims between two protected characteristics. But however interesting Masterpiece Cakeshop may be for students of comparative law, I cannot believe that it is very relevant to the likely outcome in Ashers Baking. As to whether I am right or wrong, watch this space.