4 Arvada Press
June 14, 2018J
Legal experts weigh in on Supreme Court bakery ruling Narrowness of decision makes predicting implications difficult BY CLARKE READER CREADER@COLORADOCOMMUNITYMEDIA.COM
The U.S. Supreme Court’s ruling in the Masterpiece Cakeshop case was decided in favor of Lakewood baker Jack Phillips by a larger margin than many people expected. There’s a reason for that, explains Barbara Koehler, lecturer at Metropolitan State University of Denver’s Criminal Justice and Criminology department. She has a Juris Doctor and was in private practice for 30 years. “This is such a complex case on so many levels, but the court’s decision is actually pretty narrow,” she said. “The judges focused in on the actions of the Colorado Civil Rights Commission and didn’t really address whether there was discrimination on the baker’s part.” In its 7-2 decision in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case, the Supreme Court decided that the commission’s actions violated the Free Exercise Clause. Justices Ruth Bader Ginsburg and Sonia Sotomayor were the two dissenting voices in the ruling issued on June 4. Justice Anthony Kennedy wrote the majority opinion for the court. In July 2012 Phillips declined to make a custom wedding cake for same-sex couple Charlie Craig and David Mullins, citing his religious beliefs. After his refusal to bake the wedding cake, the couple filed a complaint with the Colorado Civil Rights Commission stating that Phillips violated the state’s public accommodations law that specifically prohibits discrimination based on sexual orientation. The commission ruled against Phillips in May 2014 and the appeals court upheld the decision in May 2015. To understand the legal side of the issue, Colorado Community Media spoke to Koehler; Norman Provizer, another Metro State professor and director of the Golda Meir Center for Political Leadership and director of Leadership Studies; and Craig Konnoth, an associate professor at the University of Colorado’s Colorado Law department, who wrote an amicus brief for the case for the Colorado Civil Rights Commission. The following are key points that came up in CCM’s discussions with Koehler, Provizer and Konnoth: • The court’s decision came down to the belief that Colorado’s Civil Rights
Commission did not consider Phillips’ case free of religious bias. As Kennedy wrote: “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.” • The decision was made in part because of a comment made by former Civil Rights Commission member Diann Rice after the ruling against Phillips had been made in 2014. “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be — I mean, we — we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others,” she said in the July 25, 2014 hearing. “If nothing else, this case is a reminder to people that words matter,” Provizer said. “Especially when you have the weight of the state behind you.” • The focus on the actions of the Civil Rights Commission and its members make it difficult to use the case as legal precedent for either side of the debate. “People on both sides will quote language in the decision, but this is a very limited ruling,” Konnoth explained. “There’s not a lot to take away from this, except that the justices weren’t ready to make their mind up.” • Colorado’s anti-discrimination law, which forbids businesses from discriminating against customers based on sexual orientation, is still in place. Kennedy also wrote, “And 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.” • Similar cases will undoubtedly arise until some kind of clear decision is given by the court about where religious freedom and discrimination meet, all three experts agreed. “The issue isn’t even close to being settled yet,” Koehler said. “I saw some saying this was just one battle in a larger war, but it wasn’t even that. This was just a fist fight.”
Finding a place in the national debate Both sides of Masterpiece case reflect on past five years, what’s next BY CLARKE READER CREADER@COLORADOCOMMUNITYMEDIA.COM
On a table in south Lakewood’s Masterpiece Cakeshop there’s a guest book filled with signatures supporting and praising owner and baker Jack Phillips for standing up for his religious convictions. “The response has been really positive from the community here,” Phillips, who has run Masterpiece since 1993, said on June 8. “I’m really pleased with the ruling that protected my religious freedom. When I opened the bakery, wedding cakes were one of the main things I wanted to do. I look forward to getting back to it.” When the U.S. Supreme Court announced its ruling in Phillips’ favor on June 4 by a 7-2 vote, the first the thing he did is call his wife. The rest of the week has been a swirl of travel and interviews on shows like “Today” and “Fox and Friends.” But on the morning of June 8, anyone stopping by the shop who hasn’t been keeping up on the debate would think it was just another quiet morning at a bakery. Customers came in asking for cupcakes, trying a free sample of a brownie and filling up on free coffee. For the couple who was denied the cake, the ruling was frustrating, but not the end of their efforts to ensure equality for the LGBTQ community. A long road The debate went back to July 2012, when he declined to make a custom wedding cake for same-sex couple Charlie Craig and David Mullins, citing his religious beliefs. He describes himself as a follower of Jesus Christ and believer in a Biblical-based worldview. Over the years, he says he also declined to make custom cakes celebrating divorce, Halloween, and anything that disparages people. “I serve everybody who comes into my shop, and offered these two gentlemen brownies, birthday cakes, anything they wanted,” he said. “For me, it’s about the message the cake promotes. In this case, the message the cake promotes goes against the core teachings of my faith.” After Phillips refused to bake the wedding cake, the couple filed a complaint with the Colorado Civil Rights Commission stating that Phillips violated the state’s public accommodations law that specifically prohibits discrimination based on sexual orientation. The commission ruled against
Phillips in May 2014 and the appeals court upheld the decision in May 2015. In September, the Department of Justice filed a brief on behalf of Phillips, agreeing with his argument that his cakes are a form of artistic expression and he can’t be forced to make something that would be contrary to his beliefs. The favorable ruling for Phillips came down to his treatment by the Colorado Civil Rights Commission, which Justice Anthony Kennedy said in his majority opinion did not consider Phillips’ case free of religious bias. “All of this is going to affect the rest of his life,” said Denver resident John Chopski, who made a point to come to Masterpiece because he wanted to support Phillips. “I feel for him, because he’s been penalized just for doing what is right.” As Masterpiece’s guest book shows, Phillips has become a symbol for many who fear their religious freedoms are being ignored or actively taken away. That’s not a role he wanted, but he said all the trials and loss of revenue — he had to shrink his staff from 10 people to four — was worth it. “This was the right fight, and it got the right outcome,” he said. But legal experts and LGBTQ advocates both describe the decision as narrow in its focus. By zeroing in on the actions of Colorado’s Civil Rights Commission, the court sidestepped the larger issues of free speech and religious freedom inherent in the debate. “The decision means the fight will continue,” Mullins said. “I’ve always believed in an America where you are not turned away from a business because of who you are. No one should have to face the shame and embarrassment by being told we do not serve your kind here.”
The couple denied This issue has hung over the heads of Denver residents Mullins and Craig for their almost six-year marriage, but they’ve also found themselves at the center of a wave of support from equality advocates and organizations. Following the ruling’s announcement, they joined others at a rally at the state Capitol, including Gov. John Hickenlooper and U.S. Rep. Diana DeGette, who represents Colorado’s 1st Congressional District, which includes Denver and Englewood, among other areas. The pair are scheduled to be the grand marshals at the Coors Light PrideFest Parade on June 17. “While we’re disappointed in the ruling, we feel like the state we call home has had our back every step of the way,” Mullins said. SEE DEBATE, P5