The Future's No Cakewalk, But Perhaps a Slice of Optimism?

The U.S. Supreme Court’s recently issued Masterpiece Cakeshop v. Colorado Civil Rights Commission ruling may afford more protection for civil discourse and diverse opinion than appears on the surface.  Although it narrowly focused on the Colorado law’s unconstitutional application in the majority opinion, the Court also addressed the intersection of dignity, respect, conscience, and liberty within the context of important First Amendment Free Exercise rights. The case thus reflects the developing contours of the Court’s still newly minted framework established in the 2015 landmark Obergefell v. Hodges same-sex marriage case, with some cause for religious liberty optimism.

Background

The case’s facts are well known. Jack Phillips, an expert cake designer who owned and operated Masterpiece Cakeshop for 24 years, declined to custom design a wedding cake for a same-sex couple on religious grounds, though he offered to sell or bake other types of baked goods. Specifically, he explained that because of his religious opposition to same-sex marriage, he could not design a wedding cake in good conscience, since to do so would have been a personal endorsement and participation in a ceremony to which he was opposed.

The same-sex couple filed a complaint with the Colorado Civil Rights Commission, which then found Masterpiece Cakeshop in violation of the Colorado Anti-Discrimination Act.  Such Act prohibits discrimination in places of public accommodation on the basis of sexual orientation. The Commission ordered Masterpiece Cakeshop to stop refusing to sell wedding cakes to same-sex couples and to implement comprehensive staff training, changes to company policies for compliance with the Commission’s order, and quarterly compliance reports for a period of two years.  The case was appealed to the state Appellate Court, which affirmed, and then to the U.S. Supreme Court.

Seemingly Narrow Holding – Impermissible Government Hostility to Religion

The Supreme Court held that the Colorado Civil Rights Commission violated Phillips’ First Amendment Free Exercise rights during the investigative and adjudicative process by failing to demonstrate the requisite religious neutrality to which he was entitled. Masterpiece Cakeshop was not provided a neutral decisionmaker who would give full and fair consideration to owner Phillips’ religious objection. Rather, he was subjected to outright hostility by the state agency in violation of due process requirements. Consequently, the Court invalidated the Commission’s order.

On its face, the Masterpiece Cakeshop opinion is narrow, focusing on only the unconstitutional application of the Colorado law and procedural violations. In the Court’s majority opinion authored by Justice Kennedy, he paid special attention to the particular way in which the Commission conducted its hearings. For example, after explaining the Commission’s description of Phillips’ faith as despicable rhetoric and its comparison of Phillip’s religious beliefs to defenses of slavery and the Holocaust, Justice Kennedy asserted that it “is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.” Justice Kennedy also emphasized the inconsistent way in which the Commission treated other cases involving bakers turning away customers seeking custom cakes under comparable circumstances. Thus, the Court held that the Commission’s animus and hostility towards Masterpiece Cakeshop violated “the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”

Justice Kennedy grounded the Court’s opinion purely on procedural grounds and on a violation of a duty to undertake religious neutrality. The Court thus did not explore the broader questions surrounding the extent of the free exercise of religion in the context of artists or businesses, or whether the Commission’s actions constituted government-compelled speech. The Court further declined to set down a bright-line rule for use in subsequent cases, stating instead that the “outcome of cases like this in other circumstances must await further elaboration in the courts.”

Broader Application – Respect Religious Beliefs and Free Exercise Liberty

Notwithstanding these narrow contours, the Court’s majority opinion recognized that such 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.” Notably, the Court’s Obergefell decision was also written by Justice Kennedy, in which a central theme of the opinion was that dignity and respect for gay persons required the Court to find a fundamental right for same-sex marriage. Questions abounded, though, as to whether such dignity and respect for proponents of same-sex marriage would also extend to conscientious objectors to the modification of the marital institution. Masterpiece Cakeshop addresses such broader considerations.

First, Masterpiece Cakeshop recognizes that this is a matter of public concern on which people of goodwill may reasonably disagree. Such disagreements do not give license, especially to the government, to treat dissenting views as bigoted or despicable, deserving of hostility, derision, or other lack of respect. Instead, Justice Kennedy was keen to point out that it is beyond the government’s legitimate scope to determine what is religiously orthodox or even offensive. Even if a viewpoint may be deemed by some as offensive, that mere fact does not grant the government license to treat its proponent any differently than a holder of a more benign opinion. Justice Kennedy writes, “just as ‘no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,’ it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.” Furthermore, “the government, if it is to respect the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.”

Second, Masterpiece Cakeshop affirms the right of clergy and churches to safely decline to officiate same-sex marriage. Following Obergefell, the guarantee of this First Amendment freedom was not taken for granted. However, the Court held here that “when it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth.”

Third, the manner in which the Court discussed the Commission’s hostility in the instant case, as well as its inconsistencies with respect to other cases, reveals that a culturally desired substantive outcome does not give license to act without restraint. In other words, there must be some room to safely dissent from new cultural orthodoxy, no matter what substantive beliefs may constitute such shifting cultural norms. Whether the cultural norms are religious or not, whether Christian or atheist, the Constitution’s First Amendment protects dissenters from cultural pressure through government coercion.

Takeaways for Nonprofits – Respectful Discourse, Religious Expression, Religious Protection

Religious and other nonprofits could see this latest Supreme Court opinion with cautious optimism. Regardless of whether a nonprofit is a church, a ministry, a religious charity, or a secular one, all operate within the intermediate space between the individual and the government. It is encouraging to see the Court’s affirmation of the principle of having a cultural sphere protected by a self-limited government, which is one of the hallmarks and foundational principles of a constitutional liberal democracy. Foundation to the Masterpiece Cakeshop decision were questions of whether there is room to dissent from established cultural or state orthodoxy and whether the government is the arbiter of acceptability. Masterpiece Cakeshop affirms the principle of the right to dissent and to decline the mantle of establishing and enforcing lines of religious orthodoxy or offense. This should be good news for both faith-based and secular nonprofits.

Of course, all persons engaged in public discourse and the building of civil society, nonprofits included, should be conducting their affairs with dignity and respect towards others. But discourse goes both ways, and building something of worth is often a team effort. Thus, even holders of mutually exclusive opinions or perspectives on social priorities should respect each other as people of goodwill. 

These are important aspirational values, not necessarily upheld by all government officials—as clearly demonstrated by the Colorado Civil Rights Commission and the Court of Appeals. Not every dispute can be adjudicated by the U.S. Supreme Court—far from it! Our country remains deeply polarized over significant issues involving LGBTQ issues, religious liberty, and broader rights of conscience dimensions. Many cases too are deeply fact-specific and personal, as evident in the Masterpiece Cakeshop decision.

Bringing these considerations together, the cultural pressures on churches and other faith-based nonprofits will subject them to even greater scrutiny and perhaps even double standards, and not necessarily with predictable legal boundaries. Many religious organizations have responded with careful discernment and proactive steps, such as to more clearly demonstrate their sincerely held religious beliefs and religious nature. Such measures may be reflected through religious governance standards, facility usage aspects, employment policies, and wedding standards—all helpful for churches and other ministries.  In particular, it may also be worthwhile to clearly explain how a religious commitment and outworking of faith through a ministry is intended for the benefit of others, rather than as an imposition of a particular cultural norm, such as through a statement of faith and Biblical code of conduct.  In other words, faith-based organizations should not be afraid to think through and express how faith commitments require certain policies or operational priorities, and to document such expressions.

Conclusion

In summary, Masterpiece Cakeshop was decided on seemingly narrow procedural grounds with respect to the Free Exercise Clause, though with potentially broader applications. In any event, this case, and others which may follow, will only serve to further develop the rule set down in Obergefell. Time will tell what those nuances will be—the details surrounding the fundamental right to marry still need some time in the oven.