Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
Closed Mixed Outcome
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The Supreme Court of the United States of America set aside an order of the Colorado Civil Rights Commission that a baker could not refuse to sell a wedding cake to a same-sex couple. The case concerned a couple, Mr. Craig and Mr. Mullins, who were refused a wedding cake by a baker, Mr. Phillips, on the basis that same-sex marriage conflicted with Mr. Phillips’ religious views. Mr. Craig and Mr. Mullins filed a complaint with the Colorado Civil Rights Commission on the basis that Mr. Phillips’ refusal to create the cake was a violation of anti-discrimination law. The claim was upheld by the Commission and, subsequently, the Colorado Court of Appeals, both of which rejected Mr. Phillips’ argument that being compelled to create the cake would violate his First Amendment rights to free speech and free exercise of religion. The case was appealed by Mr. Phillips, and his cake shop, to the Supreme Court, which found in his favor. The Supreme Court concluded that the Colorado Civil Rights Commission had reached its decision in a manner incompatible with its obligation to apply laws with neutrality toward religion. In his concurring opinion, Justice Thomas concluded that the Commission’s decision also interfered with Mr. Phillips’ protected speech.
This case concerned Charlie Craig and David Mullins, a same-sex couple from Colorado who were going to get married in Massachusetts. In 2012, even though same-sex marriage was not legal in Colorado at the time, Mr. Craig and Mr. Mullins wanted a wedding cake to celebrate their Massachusetts wedding in Colorado. They approached Jack Phillips, the owner of the Masterpiece Cake shop in Colorado), who refused to make a wedding cake for them because he did not support same-sex marriage for religious reasons. Mr. Phillips offered to sell any other baked goods (e.g. birthday cakes, shower cakes, cookies) to the couple, just not a wedding cake for a same-sex wedding. The couple then brought a claim against Mr. Phillips and the cake shop on the basis that they had unlawfully discriminated against them in violation of Colorado state law.
Under the Colorado Anti-Discrimination Act (CADA), the state places a prohibition on discrimination in places of public accommodation. The relevant part states as follows: “[i]t is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”
An Administrative Law Judge, on summary judgment, ruled in favor of the couple, finding that Mr. Phillips’ actions constituted prohibited discrimination under CADA on the basis of sexual orientation. The Administrative Law Judge also rejected Mr. Phillips’ claim that requiring him to make the relevant cake would violate his First Amendment rights to free speech and freedom of religion. This was appealed to the Colorado Civil Rights Commission (Commission), which affirmed the decision of the Administrative Law Judge. The Commission ordered Mr. Phillips to cease and desist from discriminating against same-sex couples by refusing to sell them wedding cakes or any product they would sell to heterosexual couples. The Commission also ordered for staff training, changes to company policies and quarterly compliance reports over a period of two years.
This cased was then reviewed by the Colorado Court of Appeals, division one. Judge Taubman wrote the opinion of the Court of Appeals, affirming the decision of the Commission. The Court of Appeals rejected the argument that the Commission’s order unconstitutionally compelled Mr. Phillips and the cake shop to convey a celebratory message about same sex marriage. It also rejected the argument that there had been a violation of free exercise rights. The Court of Appeals stated that the Free Exercise Clause of the US Constitution did not “relieve any individual of the obligation to comply with a valid and neutral law of general applicability” on the ground that following the law would interfere with religious practice or belief.
The decision of the Court of Appeals was appealed to the Colorado Supreme Court, who declined to hear the case. This decision was then appealed to the Supreme Court of the United States.
Justice Kennedy delivered the opinion of the Supreme Court of the United States (Court), reversing the Colorado Court of Appeals.
The Court noted this case involved the need for a reconciliation between two principles, one being the authority of the government to protect the rights of gay persons from discrimination when they seek goods and services, and the other being the right of another to exercise their freedom of speech and religion. The Court noted that society had come to recognize that gay persons and gay couples cannot be treated as social outcasts, and that the Constitution must in some instances protect them in the exercise of their civil rights. It then went on to note that religious and philosophical objections to gay marriage were protected views. It then restated that “while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” [p. 10] In the context of same-sex weddings, the Court noted that there had to be care in application of this law so that there was not a long list of persons who provide goods and services for marriages and weddings who might refuse to do so for gay persons. It stated that this 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.” [p. 10] However, it recognized, for instance, that a member of the clergy could not be compelled to perform a ceremony against his or her wishes, as this would amount to denial of his or her right to the free exercise of religion.
In this case, the Court did not deem it necessary to consider whether the Commission’s ultimate findings and order were unconstitutional. Instead, it concluded that the Colorado Civil Rights Commission had acted in violation of the State’s obligation of religious neutrality, and was therefore inconsistent with the First Amendment’s guarantee that laws be applied in a manner that is neutral toward religion.
The Court noted that Mr. Phillips had raised First Amendment arguments before the Commission, and that he was entitled to the neutral and respectful consideration of these claims. The Court held that the Commission’s treatment of his case had some elements of a “clear and impermissible hostility toward the sincere religious beliefs that motivated [Mr. Phillip’s] objection.” [p. 12] The Court took great issue with several statements made by members of the Commission during the decision-making process that further supported the contention that the Commission did not act fairly and impartially. For example, the Commission made several statements that suggested religion cannot legitimately be carried into the public or commercial domain, indicating that religious beliefs were not fully welcome in Colorado’s business community. One of the Commission members also made a statement that religion has historically been used to further discrimination, “[a]nd to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.” [p. 13] This Commissioner also compared Mr. Phillips’ reliance on his religious beliefs in this case to defenses of slavery and the Holocaust. This was deemed inappropriate of someone charged with fairly and neutrally applying an anti-discrimination law that protected religion as well as sexual orientation.
Also central to the Court’s decision was the difference in treatment of three other cases decided by the Commission. In these cases, the Commission upheld the actions of bakers who refused to provide cakes for patrons when the requested cakes contained images or words that were offensive to gay persons. The Commission upheld the baker’s actions in these cases, finding that they were protected through their First Amendment right to freedom of speech and did not violate CADA. However, when examining the case at hand, the Commission found the baker’s refusal to make a cake for a same sex wedding constituted discrimination. The Court highlighted some of the reasoning relied on by the Commission and concluded that its attempt to account for the difference in treatment between Mr. Phillip’s case and these other three cases elevated one view of what is offensive over another. This, in itself, sent a signal of official disapproval of Mr. Phillips’ religious beliefs.
The reasoning of the Commission, including the way it distinguished between Mr. Phillip’s case from previous decisions and the specific statements demonstrating their partiality, violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. The decision left the question open on how to decide other cases with similar facts, but noted “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.” [p.18] The Court reversed the judgment of the Colorado Court of Appeals and set aside the Commission’s order.
Justice Kagan, joined by Justice Breyer, filed a concurring opinion.
The concurring opinion of Justice Kagan endorsed the Court’s determination that the Colorado Civil Rights Commission had not acted with the neutrality required. However, she wrote separately to note that the Commission had a neutral basis available to it to distinguish Mr. Phillip’s case from the three others. In the three other cases, the bakers refused to bake a cake with messages that were offensive in nature and that they would have refused to bake for any other customer. In doing so, these bakers had not singled out the customer on the basis of their religion. Justice Kagan contrasted this with the case at hand, as Mr. Phillips would have made a wedding cake for a heterosexual couple. She agreed with the majority since they focussed on the reasoning of the Commission (and the Court of Appeals), rather than whether Mr. Phillips cases should be distinguished from the three other cases.
Justice Gorsuch, joined by Justice Alito, filed a concurring opinion.
Justice Gorsuch joined the Court’s conclusion, finding that the Commission did not act with the required neutrality when “the only reason the Commission seemed to supply for its discrimination was that it found Mr. Phillip’s religious beliefs ‘offensive.” [p. 2] However, Justice Gorsuch wrote separately because he took issue with Justice Kagan and the dissent’s opinion that the Commission did (or could have) acted neutrally in this case and still found the baker in violation of the CADA. Justice Gorsuch found that Mr. Phillip’s case and the three other cases considered by the Commission shared all legally salient features. He stated that Mr. Phillips’ and the three other cases involved the refusal of services to persons who were a protected class (either through their sexual orientation or their religious beliefs) but they were not refused this service because of that trait. The bakers in all cases expressed the opinion that they would not sell the requested cakes to anyone, regardless of religion or sexual orientation. In short, he said, it was the kind of cake and not the kind of customer that mattered to the bakers. He noted that Mr. Phillips was presumed by the Commission to have the intent of discriminating against a protected class in light of the foreseeable effects of his conduct, but this same intent was not presumed in the other three cases. Justice Gorsuch viewed this as the Commission applying a more generous legal test to secular objections than religious ones.
He also found it irrational to try to distinguish the cake in Mr. Phillips case from the three other cases on the basis that the latter concerned cakes that had a written message. He stated that a wedding cake without words conveys a message of celebration, and if the wedding cake is made for a same-sex couple it sends a message of celebration for a same-sex wedding. It was this symbolic message that Mr. Phillips intended to withhold in keeping with his religious faith. Justice Gorsuch concluded that the Commission treated the requested cake in Mr. Phillips’ case (i.e. by treating it as a generic wedding cake) with a level of generality that it did not give to the cakes in the other three cases (i.e. which were treated as cakes conveying a specific message that the bakers found offensive to their convictions). He stated that the same level of generality should have been applied to all cases. He believed that the only way forward was to grant Mr. Phillips the same conclusion in his case as the Commission reached in the other three cases.
Justice Thomas, joined by Justice Gorsuch, filed an opinion concurring in part and concurring with the judgment.
Justice Thomas wrote separately to agree with the majority, but also to address the claim that there had been a violation of the right to free speech under the first amendment. Justice Thomas reasoned that Mr. Phillips was attempting to engage in conduct that was sufficiently expressive to enjoy protection under the First Amendment. Justice Thomas noted, in this regard that conduct will be sufficiently expression where it is intended to be communicative and, in the context, would be reasonably understood by the viewer to be communicative. He concluded that Mr. Phillip’s conduct in creating and designing custom wedding cakes was expressive, and that it clearly communicated a message celebrating the beginning of a marriage. Justice Thomas reasoned that, by forcing Mr. Phillips to create custom wedding cakes for same-sex weddings, the CADA altered the expressive content of the message being conveyed in his custom wedding cakes. He concluded that this violated the First Amendment, as it required Mr. Phillips “to, at the very least, acknowledge that same-sex weddings are ‘weddings’ and suggest that they should be celebrated—the precise message he believes his faith forbids.” [p. 8]
He went on to note that States cannot punish protected speech because some groups find it offensive, hurtful, stigmatic, unreasonable or undignified. He observed that speech rights had been upheld by the Court in cases involving cross burning, Klan rallies, and signs with ‘God hates Fags’ on them. For Justice Thomas, the fact that the Court had ruled same-sex marriage as being constitutionally protected did not give the government the right to compel speech on this matter. He concluded “[i]t is one thing … to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted and unentitled to express a different view.” [p. 13-14]
Justice Ginsburg, joined by Justice Sotomayor, filed a dissenting opinion.
Justice Ginsburg dissented, finding that the Commission did not act in a hostile or biased manner simply by ruling different ways in the different cake cases. She stated that the differences in these cases did not evidence hostility to religion of the kind the Court had previously held to signal a free-exercise violation. Furthermore, the comments made by specific Commission members at two public hearings did not justify reversing the judgment of the Court of Appeals. Justice Ginsburg explained that the statements made by the Commission should not serve to invalidate the entire proceedings when there were multiple actors in the decision-making process and a legitimate basis for upholding the Commission’s findings.
To clarify the distinguishing features of Mr. Phillips’ case, Justice Ginsburg gave some more background on the other three cake cases cited by the majority. In those cases, an individual, William Jack, requested cakes with, among other things, an image of two groomsmen, holding hands, with a red ‘X’ over the image and the slogan “[h]omosexuality is a detestable sin.” The bakers were willing to produce cakes with other Christian symbols but were not willing to make a cake with such a message, as they deemed it offensive. For Justice Ginsburg, this was in stark contrast to the cake requested by Mr. Craig and Mr. Mullins, who simply requested a wedding cake with no messages or distinguishing features. Therefore, the bakers in the first case refused to make the cakes because of the message, not because of the religion or sexual orientation of the person requesting the cakes. On the other hand, Mr. Phillips refused to create a wedding cake because of the sexual orientation of the customers requesting it. Justice Ginsburg found it was irrelevant that Mr. Phillips offered to sell cakes for another occasion or cookies to the couple, he refused to sell a good or service that he would have otherwise sold to the couple had they been heterosexual.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case presents a mixed outcome. The Supreme Court of the US (Court) preferred to focus on the decisions reached earlier in the proceedings to find that those proceedings had not been conducted in a neutral and impartial manner when it came to the defendant’s religious beliefs. This meant that the Court did not fully engage with the question of whether the First Amendment protected individuals against being compelled to produce cakes for same-sex weddings. Accordingly, many of the free speech arguments were not fully engaged with by the Supreme Court, such as whether creating a cake amounted to a sufficiently expressive act to be treated as protected speech under the First Amendment. Justice Thomas gave the most detailed opinion on the free speech arguments, and determined that a custom made wedding cake was a sufficiently expressive act. Justice Ginsberg, on the other hand, was of the view that there was “insufficient evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s.” [p. 2 of Justice Ginsberg’s dissenting opinion]
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