Tuesday, June 5, 2018

If I knew you were coming, I would bake a cake

The Supreme Court has ruled that the Colorado Human Rights Commission denied a baker his religious rights in expressing hostility toward his religious beliefs in the course of determining whether he violated the rights of a gay couple in refusing to bake them a wedding cake.

The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided on June 4. The gay couple wanted a wedding cake, but the Cakeshop baker refused to make one because of his religious opposition to same-sex weddings. This happened before the Supreme Court said that Equal Protection Clause recognizes the legality of same-sex weddings. The couple filed a discrimination complaint with the Colorado authorities, which ruled in their favor, determining that the baker violated state law, which prohibits "discrimination based on sexual orientation in a 'place of business engaged in any sales to the public and any place offering services . . . to the public.'” The Supreme Court considered whether the baker's religious objections can override the state's antidiscrimination provision (which mirrors those of most other states, including New York).

One argument the baker advanced in the Supreme Court was that the art of baking a wedding cake is free speech, and that therefore forcing him to bake a cake for gay couples constitutes coerced speech in violation of the First Amendment. The free speech clause of Constitution does prohibits coerced speech. But the argument that baking a cake constitutes expressive activity protected under the First Amendment is quite novel. So novel that the Court did not address that issue and instead ruled for the baker on narrower grounds: the antireligion hostility expressed by the state's human rights commissioners in the course of resolving this administrative dispute violated the constitutional prohibition against religious discrimination.

What did the commissioner say during the administrative proceeding? Here is how the Supreme Court presents it:

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. One commissioner suggested that [baker] Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state.” A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.”
 The Court notes these statements can be interpreted differently, but that they could be deemed dismissive toward religion. Then, at a later proceeding, a commissioner said:

 “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. 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.”
That did it for the seven-Justice majority on the Supreme Court, which concludes, "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." Notably, the quotes attributed to the commissioners -- particularly the second excerpt above -- do not explicitly say that the baker should lose because he has religious beliefs, that the religion has been used to horribly oppress people. It looks like the commissioner was making the point that religious beliefs are sometimes used to oppress. For this reason, the two dissenting Justices (Ginsburg and Sotomayor) regard these as stray remarks.

Justice Thomas concurs but, with Justice Gorsuch, says that the baker's cake-making is a free speech matter. He reasons, in part:

The conduct that the Colorado Court of Appeals ascribed to Phillips—creating and designing custom wedding cakes—is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palate with a paintbrush and baker’s whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it,and delivering it to the wedding.
Is wedding cake production a free speech issue? The Court majority rejects that proposition, but two Justices accept it. My guess is the majority did not adopt that view, which is why it decided this case on the narrower grounds relating to the religious bias expressed by the Human Rights Commission.

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