With cake-shop ruling, high court urges respect for both sides

The US Supreme Court today ruled overwhelmingly in favor of a Colorado bakeshop owner who had been punished for refusing to make a wedding cake for a same-sex couple.

Both parties in the case – Jack Phillips, the bakeshop owner, and the Colorado Civil Rights Commission, the agency that enforces the state’s anti-discrimination law – warned of the dire consequences of a broad decision favoring either side. So did many of the more than 100 friends of the court who filed supporting briefs. The court’s 7-to-2 decision Monday limited itself to Mr. Phillips’ case, however, siding with the baker but reaffirming the broader right of states to prohibit discrimination against LGBTQ people in the marketplace.

The narrow decision represents the high court’s latest attempt to navigate tensions between the rights of same-sex people to marry and the religious-freedom rights of individuals who may object to such marriages. Support for the decision – albeit lukewarm – from left-leaning Justices Stephen Breyer and Elena Kagan and the American Civil Liberties Union, which represented the same-sex couple, suggests a way for states to successfully balance those tensions moving forward, experts say.

“This doesn’t change the ability of states to protect their vulnerable citizens in any way,” says Craig Konnoth, a professor who studies the intersection of sexuality and the law at the University of Colorado, at Boulder.

“What it might do is make people a little more careful in how they talk about these issues,” he adds, “and I think being careful about the way you talk about delicate issues is a good thing.”

Turning down heat in culture wars?

The case dates back to July 2012, when Charlie Craig and Dave Mullins, recently engaged, walked into Phillips’ cake shop in a Lakewood, Colo., and asked for a cake for their wedding reception. Phillips said that, while he would be happy to make them other products, he did not sell baked goods for same-sex weddings.

Two years later the Colorado Civil Rights Commission, which enforces the state’s anti-discrimination law, ruled that Phillips had violated the law and ordered him to either sell cakes for same-sex weddings or not sell wedding cakes at all. Appealing the decision, Phillips said he felt forced to choose between his religious beliefs and his life’s work.

The Supreme Court’s decision essentially rules that while states are allowed to apply neutral and generally applicable nondiscrimination laws to business owners and other actors in the economy, they cannot do so in a way that shows hostility to religious views.

When the commission heard Phillips’ case, it did show hostility, the high court ruled. Specifically, the majority opinion – written by Justice Anthony Kennedy, the court’s swing vote and the author of the 2015 Obergefell decision that legalized same-sex marriage – focuses on statements from the commission indicating hostility toward Phillips’ faith-based argument. Noting that one commissioner compared the baker’s argument with religious defenses of slavery and the Holocaust and that another described faith as “one of the most despicable pieces of rhetoric that people can use,” Justice Kennedy wrote that when the commission considered the case “it did not do so with the religious neutrality that the Constitution requires.”

Significantly, Justice Kennedy added that “the outcome of cases like this in other circumstances must await further elaboration in the [lower] courts.”

Overall, he continued: “These disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

In the opinion of John Corvino, dean of the Irvin D. Reid Honors College at Wayne State University in Detroit, that means that the justices “punted in a way that was instructive.”

The decision “didn't settle the hard questions, but it acknowledged that there are indeed hard questions here and that we won't do a good job of addressing them if we're too quick to label either side as ‘despicable,’ ” added Professor Corvino, co-author of the book, “Debating Religious Liberty and Discrimination,” in email to the Monitor.

“In doing so, it invited us all to turn down the heat in the culture wars – a result I very much welcome.”

When it comes to anti-discrimination law, “the biggest single principle ... is that no one is turned away,” said Robin Fretwell Wilson, law professor at the University of Illinois College of Law in Champaign, speaking of the “dignitary harm of being told, ‘No, not you here.’ ” That said, she added in an interview before Monday's decision, “that does not tell you who bakes the cake. That only tells you that the business serves a person.”

“I personally think that anti-discrimination law can cotton, can allow room for a religious objection to the very thing being protected.”

Lingering tension

The ruling itself is narrow and incremental, but in the context of the national tension between LGBTQ rights and religious freedom there are wins for both sides.

“This is a big win for the religious liberty of all Americans, including Americans who believe that marriage unites a husband and wife,” said Emilie Kao and Ryan Anderson, of the conservative Heritage Foundation, in a statement.

“As the court also noted, ‘religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.’ ”

But, Ms. Kao added, “This is a big deal not just for social conservatives, but a big deal for all Americans, that all the Supreme Court is saying is that there needs to be mutual respect, respect for both sides.”

Meanwhile, for James Esseks, director of the ACLU’s LGBT & HIV Project, Phillips “won the battle but lost the war.”

The decision doesn't mean that Phillips, or anyone else, is now allowed to not sell wedding cakes to gay couples, he said in a conference call with reporters, so “on the big issue the bakery was pushing on this case, getting a constitutionally based license to discriminate, they did not succeed."

“We read this decision as a reaffirmation of the court’s longstanding commitment to civil rights protections and the reality that states have the power to protect everyone in America from discrimination," he added.

That tension – states being allowed to prevent discrimination but individuals also being allowed to object to it – has not been relieved by today’s opinion, however. When are objections justifiable, for example? How can state anti-discrimination laws protect citizens without constricting the free exercise of religion?

With similar cases percolating in the lower courts, the Supreme Court is likely to have to address those questions in the future. (One similar case, involving a florist who refused service to a same-sex couple in Washington, could be heard next term.) The four separate opinions in this case authored by various justices, suggest those questions could be challenging to answer.

Justice Kagan wrote a separate concurrence, which Justice Breyer joined, elaborating on why they agree that states are allowed to prohibit discrimination in the marketplace so long as state actors don’t “show hostility to religious views.” The concurrences from Justice Gorsuch and Justice Thomas, meanwhile, argued respectively for why Phillips should have his case re-heard by the commission – potentially setting the case up for a return to the Supreme Court – and why Colorado’s anti-discrimination law also violated his free speech rights, with Thomas saying that wedding cake-making is constitutionally protected “expressive conduct.”

Those disagreements don’t even account for the dissent written by Justice Ruth Bader Ginsburg, and joined by Justice Sonia Sotomayor, which agreed with much of the majority opinion but argued that the court should have sided with Mr. Craig and Mr. Mullins.

This context makes Kennedy’s plea for a civil and respectful discussion of these tensions all the more important, experts say.

“The court is saying: This is an important conversation to have, but dammit we’re going to have a respectful conversation, and if we don’t have a respectful conversation we’re going to put it off. And I think that’s tremendously important,” says Mark Aaron Goldfeder, senior fellow at Emory Law School’s Center for the Study of Law and Religion.

“This is a balancing test,” he adds. Equality for the LGBTQ community and the free exercise of religion “are all valid rights and they all deserve to be listened to, and that’s why it was so hurtful what the Colorado Commission did, which was almost to pretend there wasn’t another side to this question.”

And in addition to essentially requiring all sides of this issue to not demonize another, Professor Goldfeder continues, today’s decision also narrows the issue down to one specific, albeit complex, question: “How does a tolerant society balance values at tension with each other without disparaging either side?”

•Staff writer Harry Bruinius contributed to this report.