No Clear Answers for Employers: Colorado Baker Who Refused to Create Wedding Cake for Same Sex Nuptials Prevails in Supreme Court
- Tuesday, June 19, 2018
Author: Scott J. Wenner
On Monday, June 4, the United States Supreme Court (“Court”) announced its decision in the highly publicized Masterpiece Cakeshop case. Employers and business owners were among many closely watching this case, hoping for insight on how to handle complicated situations involving competing rights of business owners, customers and/or employees, where charges of discrimination could result regardless of the employer’s or owner’s response. The Court’s decision in this case did not create any new law to guide businesses, but it does further highlight the need for employers to create processes to recognize and effectively manage the risks that arise when religious beliefs and expression intersect with antidiscrimination rights and protections.
In Masterpiece Cakeshop, the Colorado Civil Rights Commission found that the refusal of a devout Christian baker, Jack Phillips, to create and sell one of his highly artistic wedding cakes to a same sex couple on religious grounds was discrimination based on sexual orientation that violated Colorado’s public accommodations law. Like the laws of more than 20 other states, Colorado’s law prohibits any Colorado place of business that sells to the public from discriminating on the basis of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry. A state court of appeals affirmed the Commission’s finding, and the Colorado Supreme Court declined to hear the case, setting the stage for review by the nation’s highest court. The Court reversed, finding in a 7-2 decision that the Commission’s actions violated the Free Exercise Clause of the First Amendment and were invalid. Although not an employment law case, both the business community and LGBT advocates anticipated an outcome that would reverberate into employment law as well.
Masterpiece Cakeshop presented an intriguing collision of important rights: freedom of expression of religious beliefs and freedom of speech (in the form of designing a creative wedding cake) on the one hand, and the right to be free from unlawful discrimination in public accommodations on the other. However, the Court’s opinion, written by Justice Anthony Kennedy, decided no broadly applicable principles of constitutional or anti-bias law, nor did it provide clear guidance to a business owner whose religious principles and/or free speech rights conflict with the rights of others protected by public accommodations laws. To the contrary, the Court decided the case on narrow grounds, based on the facts unique to that case. Indeed, to avoid any doubt over the limited reach of the decision, Justice Kennedy wrote: “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.”