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Supreme Court's Christian baker ruling also voices support for gay rights

By David G. Savage/TNS Washington Bureau • Jun 10, 2018 at 8:00 AM

WASHINGTON — The Supreme Court on Monday upheld gay rights and religious freedom with a narrowly written decision in favor of a Christian baker who refused to make a wedding cake for a same-sex couple.

By a 7-2 vote, the court said Jack Phillips, the Colorado baker, was treated with hostility and bias by a state commission that concluded his actions violated a state anti-discrimination law. One commission member had commented that religion was used throughout history to justify slavery, the Holocaust and “all kinds of discrimination.”

But the court’s opinion also stressed the importance of equal rights for gays and lesbians, and it largely rejected the claim that store owners have broad religious-liberty rights to turn away customers because of their sexual orientation.

While some may object to same-sex marriages, said Justice Anthony M. Kennedy, “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.”

The outcome was not a clear victory for either side.

Kennedy and the majority chose the narrowest possible way to resolve the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.

Lawyers for Phillips had argued that forcing him to make a wedding cake for a same-sex couple violated his rights to free speech and the free exercise of religion.

But the court ruling focused on how Phillips was treated unfairly by the Colorado Civil Rights Commission, and for that reason alone, he won his case.

“The commission’s hostility (to Phillips and his religious beliefs) was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” Kennedy wrote. “Phillips was entitled to a neutral decision-maker who would give full and fair consideration to his religious objection.”

Kennedy said the ruling was limited to the dispute between Phillips and the Colorado commission, raising doubts about whether it would help other store owners who voiced the same claim based on their “sincerely held religious beliefs.”

“The outcome of other cases like this in other circumstances must await further elaboration in the courts,” said Kennedy, who has written most of the court’s most significant gay-rights cases. “These disputes must be resolved with tolerance, without undue disrespect to sincere religious belief, and without subjecting gay persons to indignities when they seek goods and services an open market.”

Chief Justice John G. Roberts Jr. and conservative Justices Samuel A. Alito Jr. and Neil M. Gorsuch joined Kennedy’s opinion, as did liberal Justices Elena Kagan and Stephen G. Breyer.

Conservative Justice Clarence Thomas agreed with the outcome, but did not sign on to Kennedy’s opinion and its endorsement of equal rights for gays and lesbians.

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented, but only because they did not believe the “comments of one or two commissioners” suggested that the state was biased against Phillips because of his religious beliefs.

The case has been widely seen as clash between Christian conservatives and champions of gay rights in states like Colorado and California. Twenty-two states have laws that forbid businesses from discriminating based on sexual orientation and require “full and equal” service for gay and lesbian customers. Federal law forbids discrimination based on race, religion and national origin, but not sexual orientation.

The Colorado case arose as part of a conservative backlash against the Supreme Court’s 2015 ruling, also written by Kennedy, holding that same-sex couples had a constitutional right to marry in all states. The Arizona-based Alliance Defending Freedom went to court in several states seeking religious exemptions for Christian conservatives like Phillips who believed that it would be sinful to help celebrate a same-sex marriage. Phillips said he would gladly serve gay customers, but he refused to design a wedding cake for a same-sex couple.

In 2012, Charlie Craig and Dave Mullins went to Phillip’s bake shop in a strip mall in Lakewood, Colo., on the recommendation of a wedding planner. They had married in Massachusetts, but returned to the Denver area for a celebratory reception with their family and friends.

But the celebration hit a sour note. As soon as they said they were interested in a wedding cake, Phillips told them he did not create cakes for same-sex couples. Angry and upset, they left the store and later filled a complaint with the state’s civil rights commission. That seven-member panel is charged with enforcing the state’s law. It does not impose fines or award damages, but it can order businesses to “cease and desist” from discriminating.

An administrative judge heard from Phillips and the two men, and ruled that the store was violating the law. The commission agreed unanimously, and the Colorado courts rejected appeals from Phillips. The Supreme Court, however, agreed to hear his case.

Nearly all of the arguments had focused on the claim that the baker — if required to make a custom cake — would be effectively forced to express a viewpoint in favor of same-sex marriage, against his religious beliefs. He also claimed that his cakes were a form of protected artistic expression.

The Trump administration urged the court to rule that Phillips had a free-speech right not to make a special cake to celebrate a same-sex marriage.

Kennedy dismissed that argument. “Few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise in protected speech,” he said. Moreover, it was unclear whether the two men were seeking a cake with a special message or simply a standard product.

Kennedy turned next to the free exercise of religion. In 1990, shortly after Kennedy joined the court, the justices said individuals do not have a right to religious exemption from ordinary laws. But a few years later in a case involving Santeria religion and ritual sacrifice of animals, the court said the government may not pass special laws or discriminate against people because of their religious views. Kennedy wrote that 1993 opinion.

Monday’s decision focused heavily on the comments of one commissioner who described religious rhetoric as “despicable” and said some people “use their religion to hurt others.”

Such comments had been hardly mentioned as the case moved through the courts. But Kennedy cited them during the oral argument in December.

Advocates for both religious liberty and gay rights saw something to like in the decision.

“The court has said 7-2 that the Constitution requires us to try and get along. There is a room enough in our society for a diversity of viewpoints and that includes respecting religious beliefs, too,” said Mark Rienzi, president of the Becket Fund for Religious Liberty. He called the decision a “strong message to governments across the country that they must respect — rather than punish — religious diversity on important issues.”

Shannon Minter, legal director for the National Center for Lesbians Rights, said the narrow ruling “leaves intact the long-standing principle that states can require businesses open to the public to serve everyone, even when some businesses believe that doing so violates their religious beliefs.”

“Anti-LGBTQ extremists did not win the sweeping ‘license to discriminate’ they have been hoping for,” said Chad Griffin, president of the Human Rights Campaign. Instead, the court “acknowledged that LGBTQ people are equal and have a right to live free from the indignity of discrimination.”

About the writer: David G. Savage writes for the Tribune News Service.

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