The real problem with discrimination in Colorado

Masterpiece Cakeshop was supposed to come out five to four, against the baker. At least according to the pundits. In a surprising twist, however, the baker won: by a seven-to-two margin.

The owner of Masterpiece Cakeshop, Jack Phillips, is a devout Christian and an excellent baker. When a same-sex couple came into his store to inquire about a wedding cake, Mr. Philips explained that, although he would happily sell the couple baked goods or a birthday or shower cake, he could not — consistent with his religious beliefs — use his artistic skills to create a wedding cake endorsing same-sex marriage.

{mosads}The couple filed a complaint with the Colorado Civil Rights Commission. The Commission dismissed Mr. Phillips’ freedom of expression and freedom of religion claims and concluded that Mr. Phillips had violated Colorado’s Anti-Discrimination Act by refusing to create a same-sex wedding cake.

In an opinion by Justice Anthony Kennedy, the Supreme Court found that it was the Commission who had engaged in discriminatory conduct. While every person, including gay persons and couples, must be treated with dignity and worth, religious objections to gay marriage are protected views. And instead of the neutral, impartial consideration of his religious objections to which Mr. Phillips was entitled, the Commission’s handling of the case demonstrated “clear and impermissible hostility toward the sincere religious beliefs that motivated (Phillips’) objection” to create a same-sex wedding cake.

This hostility was demonstrated both by statements made during the proceedings and also by the different treatment accorded Mr. Phillips’ case. During the first hearing, a commissioner stated that religious beliefs may not be carried into the public arena or the commercial sphere. Rather, if a person decides to do business in Colorado, that person must be prepared to “compromise” their religious faith.  (Of course, in Hobby Lobby the Supreme Court held precisely the opposite.)

The next hearing evidenced even more hostility towards Mr. Phillips’ religious beliefs. A Commissioner compared Mr. Phillips’ sincere expression of belief to defenses of slavery and the holocaust and labeled Mr. Phillips’ faith-based conscience objection “one of most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”

The Court also found evidence of hostility in the fact that Mr. Phillips’ case was treated much differently from the cases of three other bakers who refused to bake cakes with anti-gay messages. The Commission allowed these other bakers to refuse to bake a cake that would have violated their secular beliefs, but denied the same accommodation to Mr. Phillips who refused on religious grounds.

As Justice Gorsuch wrote, the only apparent reason for the disparate treatment was that the Commission found Mr. Phillips’ religious beliefs “offensive.” But the First Amendment does not permit a governmental body to apply a more generous legal test to a secular objection than a religious one.

The First Amendment requires the government to be neutral as to religion. Government may not officially disapprove of a religious belief, pass moral judgment on a conscience objection, or presuppose its illegitimacy. Rather, as the Court held, the Constitution “commits government itself to religious tolerance.”

The irony here is that Colorado’s anti-discrimination law protects against discrimination on the basis of religion, as well as sexual orientation. Given the naked hostility expressed by the government authority charged with adjudicating discrimination claims, the surprising thing about the Masterpiece Cakeshop decision is not that it was decided 7-2, but that it was not decided 9-0.  

Erin Hawley is a legal fellow at the Independent Women’s Forum, an associate professor of law at the University of Missouri, and a former clerk to Chief Justice John G. Roberts Jr.