published Jun 4, 2018, 3:48:57 PM, by Greg Stohr
(Bloomberg) —

The U.S. Supreme Court left unresolved questions about the competing rights of business owners and gay customers as the justices issued a narrow ruling Monday favoring a Colorado baker who wouldn’t make a cake to celebrate a same-sex wedding.

Voting 7-2, the court tossed out a Colorado Civil Rights Commission finding that the baker had violated a state civil-rights law. The high court said the decision was tainted by anti-religious bias, pointing to one commissioner’s comments that religion had been used to justify slavery and the Holocaust.

“The commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” Justice Anthony Kennedy wrote for the court.

But Kennedy also said the court wasn’t deciding whether other business owners have a right to refuse to take part in gay weddings, saying those issues “must await further elaboration in the courts.”

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. Two other members of the court’s liberal wing, Stephen Breyer and Elena Kagan, joined the majority while writing separately to say they read the court’s opinion as a limited one.

The Civil Rights Commission had required bakery owner Jack Phillips to either make cakes for gay weddings or stop making custom wedding cakes at all.

Reception in 2012

The dispute began in 2012, before gay marriage was legal in Colorado, when David Mullins and Charlie Craig visited Phillips’s suburban Denver bakery, Masterpiece Cakeshop. The two men wanted a cake for a reception they planned to hold in Colorado after they married in Massachusetts.

Phillips told the couple he didn’t make cakes for same-sex weddings, prompting them to file a civil rights complaint. State officials joined the case against Phillips, and a Colorado appeals court ruled against the bakery.

Kennedy said both sides in the case raised legitimate concerns.

“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” he wrote. “For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights.”

He added: “At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

The court will have another chance to resolve the broader questions soon. The justices have been deferring action on a similar appeal pressed by a florist in Washington state and may act on that appeal as early as next Monday. The court could accept the appeal for consideration during the nine-month term that starts in October.

‘Dangerous Encouragement’

Gay-rights advocates offered mixed reactions. Rachel Tiven, chief executive of Lambda Legal, said the court “has offered dangerous encouragement to those who would deny civil rights to LGBT people and people living with HIV.”

But the American Civil Liberties Union, which represented Craig and Mullins, applauded the parts of the decision that re-affirmed states’ general ability to enforce anti-discrimination laws. ACLU lawyer James Esseks said in a conference call with reporters he believes even Phillips will have to comply in the future.

“If a new same-sex couple walks into that business, I see no reason in this opinion that the Masterpiece Cakeshop is free to turn them away,” Esseks said. “They asked for that and they didn’t get that right.”

Phillips’s lawyer, Kristen Waggoner of the advocacy group Alliance Defending Freedom, suggested that he will be able to resume selling wedding cakes without having to make them for same-sex marriages.

“He is relieved to know that he will not have to choose between his convictions and his family business,” Waggoner told reporters. “That’s a price that no one should have to pay.”

‘All Kinds of Discrimination’

The main holding in Monday’s decision focused on comments made by two of the Colorado commission’s seven members while considering the case in 2014. In the most controversial comments, then-Commissioner Diann Rice said that religion “has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust.”

She added, “To me, it is one of the most despicable pieces of rhetoric that people can use, to use their religion to hurt others.” Rice left the commission in 2016 when her term expired.

Kennedy said those comments disparaged religion and “cast doubt on the fairness and impartiality of the commission’s adjudication of Phillips’s case.”

In her dissenting opinion, Ginsburg said she saw “no reason why the comments of one or two commissioners should be taken to overcome Phillips’s refusal to sell a wedding cake to Craig and Mullins.”

In a statement, Waggoner said Colorado “was openly antagonistic toward Jack’s religious beliefs about marriage.”

“The court was right to condemn that,” she said. “Tolerance and respect for good-faith differences of opinion are essential in a society like ours.”

Attorney General Jeff Sessions said in a statement that the high court “rightly concluded that the Colorado Civil Rights Commission failed to show tolerance and respect for Mr. Phillips’ religious beliefs.”

The Trump administration had urged a limited ruling for Phillips that would protect bakers, musicians, photographers and other wedding vendors whose work involves expression.

The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission, 16-111.

To contact the author of this story: Michael R. Bloomberg at mbloomberg@bloomberg.net
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