In 2004, Massachusetts became the first state in the United States to recognize same sex marriage. Numerous states thus enact differing laws regarding the ability of same sex couples to marry in their states, with numerous states passing laws to ban same sex marriage, and various states over the years, voting to allow same sex marriage. Some states began to allow same sex couples to enter into “civil unions”. New Jersey did so in 2006. In 2012, Governor Chris Christie vetoed a potential law in New Jersey that would have allowed same sex marriage.
In 2012, President Obama became the first president to endorse same sex marriage, but stated that the legal decision should be up to the states. In 2011, however, the Obama Administration had already instructed the Justice Department to stop defending the constitutionality of the 1996 Defense of Marriage Act (“DOMA”), leading to the Supreme Court decision in United States v. Windsor.
As family law practitioners, this blog has followed much of the evolving law on same sex marriage. In 2013, James Yudes wrote a blog about the decision in United States v. Windsor to strike down as unconstitutional provisions in the 1996 Defense of Marriage Act (“DOMA”), which defined “marriage” as only a legal union between on man and one woman as husband and wife , and defined the word “spouse” as referring only to a person of the opposite sex who is a husband or a wife. In 2013, I also wrote a blog post about the case of Lewis v. Harris, 188 N.J. 415 (2006), in which the Supreme Court of New Jersey held that the Legislature should afford same sex couples the same rights as married couples, either by allowing same sex couples to marry or creating an alternate solution. New Jersey became the fourteenth state to recognize the right of same sex couples to marry. In 2015, my former colleague wrote a blog about the milestone decision of the United States Supreme Court in the case of Obergefell v. Hodges, in which the Supreme Court held that that all states must (a) no longer prohibit same-sex couples from marrying, and (b) must recognize same-sex marriages validly entered into. The right of same sex couples to marry became the law of the land in the entire country.
That did not, however, end the discrimination against same sex couples who wished to marry, particularly by those who disagreed with Obergefell and who asserted religious grounds as a basis to interfere with or undermine the rights of same sex couples marrying on religious grounds. Perhaps the most famous occurrence of this was in 2015 when a Kentucky county clerk named Kim Davis refused to comply with Obergefell, and refused to issue marriage licenses to same sex couples on religious grounds and on the basis of “religious authority”. She was briefly jailed for her refusal to issue marriage licenses to gay persons. She attempted to appeal the obligation to issue marriage licenses to same sex couples to the United States Supreme Court, which would not accept her case.
If a government employee cannot interfere with the right of a same sex couple to marry, what obligation does a private citizen or company have to provide services related to weddings or wedding celebrations of same sex couples?
One case involving a bakery in Colorado became national news. In this 2012 dispute, Charlie Craig and David Mullins intended to marry in Massachusetts, where same sex marriage was legally permitted. They planned a wedding reception in Colorado, where same sex marriage was not then legally permitted. The couple went to a bakery in Colorado called Masterpiece Bakery to order a custom wedding cake, but the owner, Jack Phillips, refused on the basis that (1) Colorado did not recognize the ability of same sex couples to marry, and (2) because creating a custom wedding cake for them would conflict with his religious beliefs, although he would allow them to purchase already made baked goods from the store. This dispute arose before Colorado in 2014 accepted the rights of same sex couples to marry and before the decisions in Windsor and Obergefell.
The couple filed a complaint with the Civil Rights Commission in Colorado, alleging that they had been discriminated against as a gay couple because they were denied “full and equal service” at the bakery due to their sexual orientation and that it was the baker’s standard business practice not to provide cakes for same sex weddings. The Commission investigated and discovered that on six occasions the bakery had turned away potential customers of custom wedding cakes on the basis of sexual orientation due to the owner’s religious beliefs, and because Colorado did not then allow same sex marriage. The bakery also refused to sell cupcakes to a lesbian couple for a commitment celebration due to the bakery’s “policy of not selling baked goods to same sex couples for this type of event.”
The state administrative law judge (ALJ) found that the refusal to create a cake for Mr. Craig and Mr. Mullins violated Colorado’s public accommodations law, which bars discrimination on the basis of, among other reasons, sexual orientation. The ALJ rejected the argument of the baker that requiring him to use his artistic talents to create a cake that expressed a message with which he disagreed barred his right to free speech. The ALJ rejected that claim that creation of a wedding cake is a form of protection speech, and reasoned that creation of a wedding cake does not require the baker to adhere to an ideological point of view. The baker also argued that creation of the wedding cake violated his right to the free exercise of religion, also protected by the First Amendment. The ALJ disagreed. The Colorado Civil Rights Commission affirmed and directed the baker 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 Colorado Court of Appeals affirmed. The bakery appealed the decision to the United States Supreme Court.
At oral argument in December, 2017, all eyes turned towards Justice Anthony Kennedy given that it is not uncommon that his vote is a deciding factor in Supreme Court decisions. He is not only a defender of the right to free speech, but he also wrote the majority decision in Obergefell which made same sex marriage the law of the land. Those are competing rights in this case, and at oral argument Justice Kennedy showed support for both positions freedom of speech and defense of gay rights.
The United States Supreme Court issued their decision today, June 4, 2018, in Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission. Justice Kennedy was not a swing vote; the Supreme Court voted in favor of the bakery in a 7 to 2 decision. Justice Ginsburg and Justice Sotomayor were the two dissenting justices.
To be clear, the Supreme Court did NOT decide that business owners and/or operators are are permitted to on religious grounds to discriminate against people on the basis of sexual orientation by refusing to provide services or goods to gay people. Rather, the Supreme Court reversed the decision of the Colorado Civil Rights Commission on the basis of the bakery being entitled to an arbiter of discrimination that was not hostile to his religious beliefs. The Supreme Court did not really address the central issue of whether the baker’s right to free speech had been implicated.
Justice Kennedy’s opinion began by addressing the difficulty this case presented in reconciling the government’s need to (1) respect the rights and dignity of gay persons who wish to marry but are faced with discrimination in seeking goods and services, and (2) protect the rights of all persons to exercise fundamental freedoms of speech and the free exercise of religion. Justice Kennedy stated that the decision is not one that can be used to discriminate against gay people. He noted that “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. For that reason, the laws and the Constitution can, and in some instances, must protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” He continued by stating 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.”
The baker conceded that if he refused to sell any goods or services or any wedding cake to a same sex couple, this would be a different matter and that the State of Colorado would have a stronger case of discrimination against him. The baker, however, claimed that he should not have to use his artistic skill to make an expressive statement in endorsement of a wedding that violated his religious beliefs. Justice Kennedy was open to the idea that baking a cake could be an expression of free speech, but did the case was not decided on that basis. Rather, he made more of an assessment about whether the Commission was neutral in assessing the baker’s claims for religious freedom.
Justice Kennedy was sympathetic to the baker’s argument that in 2012 same sex couples were not permitted to legally marry in Colorado, which made the baker’s belief that he could refuse to make a wedding cake for a same sex couple more reasonable at the time. At the time, state law in Colorado also allowed store keepers at least some latitude to decline to create specific messages that a store keeper felt were offensive. Other bakers in Colorado had been found to be legally permitted to refuse to make cakes with decorations or messages that were derogatory or that demeaned gay people.
Justice Kennedy balanced the need to protect gay persons from discrimination with need for the government to be neutral and respectful of religious claims. Justice Kennedy stated that “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [the baker’s] objection.” As examples, the Court referenced the Commissioners’ view that religious beliefs cannot be carried into a public sphere or commercial domain, implying that religious beliefs are not welcome in the business community and the view business persons have to be prepared to compromise personal belief systems if they want to do business in the state. The Commission had also compared the baker’s invocation of his religious beliefs to defenses of slavery and the Holocaust, which the Supreme Court found inappropriate for a commission charged with enforcing anti-discrimination laws and demonstrated the Commission’s lack of impartiality in this case. The Court found the Commission’s treatment of this case inconsistent with other cases were bakers had been permitted to refuse to make a cake with messages that the bakers felt were derogatory.
The Supreme Court noted that the Commission had a constitutional obligation under the First Amendment not to base laws or regulations on hostility to a religion or a religious viewpoint. The Court reasoned that the baker “was entitled to a neutral decision maker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.”
The Court stressed its concern with a decision that would create an allowable stigma with regard to same sex marriage or discriminating against persons on the basis of sexual orientation. While presuming that a member of the clergy who objected to same sex marriage on religious grounds had religious freedom not to be compelled to perform a same sex wedding ceremony, Justice Kennedy expressed worry that “if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting 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.” Therefore, “any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘ no goods or services will be sold if they will be used for gay marriages, something that would impose a serious stigma on gay persons.”
This Supreme Court opinion may have relatively narrow application and is fact specific and does not give carte blanche to business owners to discriminate on the basis of sexual orientation by refusing to sell goods and services to gay people. The Court expressly left open that a different case could be decided differently. Justice Kennedy stressed that “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that 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.”
Justice Kennedy’s decision did not make it allowable for business owners to discriminate on the basis of sexual orientation. The decision does not conclude that the baker was correct in refusing on religious grounds to bake a specialized wedding cake for the gay couple. Rather, the decision focused on the legal process applied by the state, the hostility to the religious argument, and the perceived lack of impartiality. This case also, however, appears to demonstrate that in some circles, it appears to still be acceptable to discriminate on the basis of sexual orientation. The baker’s lawyer, for instance, conceded at oral argument that there were instances where it would have been discriminatory for the baker to refuse to create a wedding cake. For instance, the baker’s attorney agreed that it would have been discriminatory for him to have refused to create a wedding cake for a mixed race couple. There was a time when it was illegal for people of mixed races to marry in certain states. Why is it more acceptable to refuse to make a wedding cake for a gay couple? Perhaps it is changing, as the Supreme Court pointed out in defense of the baker that at the time he refused to make the cake, same sex marriage was not allowed as it is now. The Court was open to a different result if different facts were presented. This case demonstrates that extent to which the nation still is to some extent grappling and coping with recent decisions involving same sex marriage, and that this is still an evolving area of law that warrants following closely.