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MASTERPIECE CAKESHOP – UPDATE

July 2018

ISSUE: Masterpiece Cakeshop Case goes to the Supreme Court – Update to the January 2018 Spiritual Growth Point – Supreme Court Decision handed down.

BACKGROUND: The Masterpiece Cakeshop vs. the Colorado Civil Rights Commission case has been appealed all the way to the Supreme Court where oral argument was heard on December 5th 2017.  A ruling opinion was handed down on June 4th, 2018 making it possible to update the January Spiritual Growth Point.  Since the case had freedom of expression, religious freedom and civil government protection implications, it is important for Christians to inform themselves about the case.  The information summarized below is based on, and extracted from, the following articles:  (New research) “MasterPiece Cakeshop, LTD., ET AL. v. Colorado Civil Rights Commission ET AL., Syllabus, Supreme Court of the United States, Certiorari to the Court of Appeals of Colorado, No. 16-111.  Argued December 5, 2017 – Decided June 4, 2018.  “The Supreme Court’s Half-Baked Cake”, Editorial, The Wall Street Journal, June 5th, 2018;  (Previous research) “Religious Freecom Is for Christians, Too” by Luke W. Goodrich, Wall Street Journal, December 5th, 2017;  “Let Them Not Bake Cake”, Review & Outlook Editorial, December 4th 2017; “Supreme Court seems divided in case of baker who refused to create a weeking cake for a same-sex couple” by Robert Barnes & Ann E. Marimow, Washington Post, December 5th 2017; “The Masterpiece Cakeshop Case Is Not About Religious Freedom” by Jennifer Finney Boylan, New York Times, November 29th, 2017;  “Masterpiece Cakeshop v. Colorado Civil Rights Commission”, American Civil Liberties Union, October 31st, 2017, retrieved from www.aclu.org on December 7th, 2017. “Masterpiece Cakeshop v. Colorado Civil Rights Commission”, Alliance Defense Fund, retrieved from www.adflegal.org on December 7th, 2017 – Note, the transcript of the oral argument is available at this site and / or at www.supremecourt.gov also reviewed in support of the development below.

DISCUSSION: This is an update to the January 2018 Spiritual Growth Point, which summarized the case after oral argument before the Supreme Court on December 5th 2017.  The January Spiritual Growth Point is repeated in full here for review prior to appending a summary of the decision handed down on June 4th 2018.

In 1993, Jack Phillips, a Colorado native, opened “Masterpiece Cakeshop” in the community of Lakewood.  Mr. Phillips has been a part of major milestone events for many in the community, including young couples who chose their wedding cake at his shop, only to return years later as parents requesting graduation cakes for their children.  In July of 2012 two men came into Jack’s cakeshop requesting a wedding cake for their same-sex ceremony.  Charlie Craig and David Mullins were from Colorado which did not at that time, recognize same-sex marriages.  Charlie and David had made plans to be legally wed in Massachusetts and thereafter to return to Colorado for a celebration with family and friends.  They wanted a special cake for the celebration associated with their return to Colorado.

During that first visit, Phillips, who is Christian, declined the couple’s request, informing them that he did not create wedding cakes for same-sex marriages due to his religious beliefs, and offered that the couple could purchase other baked goods including a pre-made cake in the store.  The couple left the store without discussing details of the cake design.  The following day, Charlie Craig’s mother called Phillips, who told her that he does not make wedding cakes for same-sex weddings.  Despite the fact another bakery provided a cake to the couple, Craig and Mullins filed a complaint to the Colorado Civil Rights Commission under the state’s public accommodations law, the Colorado Anti-Discrimination Act (CADA), which prohibits businesses open to the public from discriminating against their customers on the basis of race, religion, gender, or sexual orientation.

Jack Phillips explained that it wasn’t Charlie Craig and David Mullins that he objected to, but rather the message the cake would send about marriage.  Despite that, an administrative law judge ruled against Phillips and Masterpiece Cakeshop in December 2013.  The Commission did not equate designing and creating cakes for same-sex wedding ceremonies to speech protected by the First Amendment.  It determined that Phillps had engaged in sexual orientation discrimination under the CADA when he declined to design and create a custom cake honoring a same-sex marriage because doing so conflicts with his sincerely held religious beliefs.  Jack Phillips and his staff were ordered to either violate Jack’s faith by designing custom wedding cakes that celebrate same-sex marriages or to stop designing all wedding cakes, which make up approximately 40% of his business.

Colorado is one of twenty-one U.S. states that have anti-discrimination laws against sexual orientation.  Craig and Mullins’ complaint resulted in a lawsuit, Craig v. Masterpiece Cakeshop.  The case was decided in favor of the plaintiffs and the cake shop was subsequently ordered not only to provide cakes to same-sex marriages, but to “change its company policies, by providing ‘comprehensive staff training‘ regarding public accommodations discrimination”, and “quarterly reports for the next two years regarding the steps it has taken” to come into compliance including data on “whether it has turned away any prospective customers.”  Phillips appealed.  Along the legal pathway, the Alliance Defending Freedom (ADF) picked up the defense of Phillips case and the American Civil Liberties Union (ACLU) aligned with Craig and Mullins.  In 2014, Colorado began allowing same-sex marriages, and in 2015, the Supreme Court of the United States ruled in Obergefell v. Hodges (2015) that marriage is a fundamental right extending to same-sex couples.

At the next legal level, on August 13th, 2015, the Colorado Court of Appeals, unanimously affirmed the Commission’s order, finding no violation of the Free Speech or Free Exercise Clauses.  The Court deemed Phillips’ speech to be mere conduct compelled by a neutral and generally applicable law.  It reached this conclusion despite the artistry of Phillips’ cakes and the Commission’s exemption of other cake artists who declined to create custom cakes based on their message.  The court also concluded that application of the CADA did not infringe the bakery’s freedom of speech or free exercise of religion.

Because the Colorado Supreme Court denied review, in July 2016, ADF and allied attorneys petitioned the United States Supreme Court to take up Jack’s case.  The Supreme Court granted review of the case because “the Court of Appeals analysis (1) flouts this Court’s controlling precedent, (2) conflicts with Ninth and Eleventh Circuit decisions regarding the free speech protection of art, (3) deepens an existing conflict between the Second, Third, Sixth, and Eleventh Circuits as to the proper test for identifying expressive conduct, and (4) conflicts with free exercise rulings by the Third, Sixth, and Tenth Circuits.”  The question presented to the Supreme Court for Oral Argument on December 5th 2017 involved:  “Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment”.

The dispute in Masterpiece Cakeshop v. Colorado Civil Rights Commission comes on the heels of two other high-profile religious-freedom cases involving Christians— Burwell v. Hobby Lobby (2014), in which the court said a business couldn’t be forced to pay for contraception in violation of its owners’ religious beliefs, and Zubik v. Burwell, which effectively said the same thing about religious nonprofits, including the Roman Catholic order Little Sisters of the Poor.

The Supreme Court has long held that the First Amendment prohibits the government from compelling speech or the exercise of religion.  Its landmark ruling in West Virginia State Board of Education v. Barnette (1943) protected the right of a Jehovah’s Witness not to participate in the Pledge of Allegiance. In Wooley v. Maynard (1977), the Court said New Hampshire could not compel a Jehovah’s Witness to display the state motto “Live Free or Die” on his license plate since the First Amendment protects “the right of individuals to hold a point of view different from the majority and to refuse to foster . . . an idea they find morally objectionable.”

Cases like Masterpiece Cakeshop were inevitable after the Supreme Court’s 2015 ruling in Obergefell v. Hodges that guaranteed a right to same-sex marriage.  Writing for the majority, Justice Anthony Kennedy held that “many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises . . . But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.”   States have since compelled florists, photographers, bakers and venue hosts to personally sanction marriages that they find morally objectionable.  Those who don’t are stigmatized and in some cases coerced.

While some on the left liken Mr. Phillips to a hotel owner in the Jim Crow era, there’s no evidence of such discrimination.  Mr. Phillips and others who have denied wedding services to same-sex nuptials have consistently served gays in other contexts.  Mr. Phillips said he would sell the gay couple other baked goods—simply not a custom wedding cake.  Mr. Phillips has also consistently conducted his business according to his moral scruples, including refusing to make cakes with vulgar messages, which oddly, the state’s public accommodation law allows.  The Masterpiece Cakeshop case raises significant First Amendment concerns.  Custom cakes can be construed as artistic expression, which is protected by the First Amendment.  Weddings for many people are religious celebrations, and participation—or abstention—is, in itself, an act of expression.

For it’s part, Colorado relies heavily on Employment Division v. Smith, a 1990 case in which a Native American sought a religious dispensation under the First Amendment after being fired for smoking peyote. “The right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability,’ ” Justice Antonin Scalia wrote for the majority.  But Colorado’s public accommodation law is not neutrally applied.  It is applied selectively to dictate ideological conformity.  For instance, the commission has allowed three bakers to deny service to religious customers who requested a cake criticizing same-sex marriage.  Thus, the state is punishing forms of speech it dislikes.

The Supreme Court held in Obergefell that the government may not enshrine into law any viewpoint that can be used to “demean” or “stigmatize” those with different mores—which is effectively what Colorado has done by censuring Mr. Phillips.  Colorado’s Employment Division v. Smith case also stipulated several religious exemptions from generally applicable laws including that “the government may not compel affirmation of religious belief” or “impose special disabilities on the basis of religious views or religious status.”  Yet Colorado does both.

The Masterpiece Cakeshop case pits the government’s interest in social equality against an individual’s constitutional right to express his beliefs.  A ruling for Colorado could encourage other government burdens on First Amendment religious rights, especially in this era of right-left cultural polarization. Could the state compel Catholic doctors to perform abortions, or require Catholic adoption services to place children with same-sex couples?  As Justice Kennedy noted in Obergefell, the “Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”  If this applies to same-sex marriage, which isn’t mentioned in the Constitution, it certainly ought to apply to religious belief, which is there in black and white.  You might say a victory for Masterpiece Cakeshop would be a victory for everyone.

Post Supreme Court Decision Update:  In the decision handed down on June 4th, 2018, the Supreme Court ruled 7-2 for a baker who refused to custom-bake a cake for a same-sex wedding out of sincere religious belief.  In doing so, it stated, “The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”  Impacting the case “…while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages.” 

The Court also concluded that the Colorado Commission, “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.  As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.”  Indeed, the majority decision could have gone the other way had some facts been different.

The American Civil Liberties Union took the perspective that the Supreme Court ruled “based on concerns unique to the case but reaffirmed its longstanding rule that states can prevent the harms of discrimination in the marketplace.”  As an editorial put it:  “The message is that governments can punish religious beliefs as long as they keep their animus toward religion in the closet.”  However, the opinion of the Court seems to guard against that potential when it states:  “Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.  That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.”

Justice Kennedy delivered the opinion of the Court, in which Chief Justice Roberts and Jutices Breyer, Alito, Kagan, and Gorsuch joined.  Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined.  Justice Gorsuch took the commission to task for applying a different standard in a case involving a baker who had refused to bake wedding cakes that criticized same-sex marriage:  Civil authorites may not “gerrymander their inquiries based on the parties they prefer.”  In their concurrence, Justices Elana Kagan and Stephen Breyer defended the commission’s disparate treatment.  While they agreed with Justice Kennedy that the commission had evinced bias toward Mr. Phillips, they said the commission could have legally punished him if commissioners had shown no overt religious bias.  As an editorial put it:  “Four liberal Justices aren’t content with the right to same-sex marriage; they want to coerce everyone else to celebrate it no matter their religious beliefs, and politicians will follow.”

SPIRITUAL GROWTH POINT:  What does the Bible say about this topic?

“I will walk about in freedom, for I have sought out your precepts.” Psalm 119:45

“All the nations may walk in the name of their gods, but we will walk in the name of the Lord our God for ever and ever.” Micah 4:5

“It is for freedom that Christ has set us free.  Stand firm, then, and do not let yourselves be burdened again by a yoke of slavery.” Galations 5:1

There will be a new Spiritual Growth Point every month. This Spiritual Growth Point is brought to you by the Men of Grace and was compiled by the Spiritual Growth Committee including Brian Repp, Paul Tucker and Eric Rosenlof who serve as a part of the Men’s Ministry led by Joel Prell.


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