Supreme Court’s cakeshop ruling is a narrow one, but a broad one too

In its decision this week in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n., the Supreme Court issued a ruling that was both narrow and broad at the same time. 

In the case, a Colorado baker appealed a state ruling that he improperly refused to bake a wedding cake for a gay couple, in violation of a state civil rights law that guarantees non-discrimination against LGBTQ individuals as well as racial and other minorities by businesses providing goods and services to the public. But the Court did not rule that the baker had a valid religious or free speech objection to complying with the law. Instead, it found for the baker on the narrow ground that in processing the case, the state commission had shown “hostility” and “disrespect” for the baker’s religious views. 

In fact, the Court more broadly declined to provide Religious Right advocates the victory they were hoping for, that is, a ruling that such religious or free speech objections could justify an exemption to civil rights laws protecting LGBTQ individuals.

The majority opinion of the Court agreed with the broad principle that “religious and philosophical objections” simply “do not allow business owners” and others to “deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Indeed, the Court explained, “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,” and can accordingly be protected by civil rights laws.

Unfortunately, the Masterpiece decision is far from the end of efforts by anti-gay advocates to exempt themselves from such civil rights laws. There are many other cases pending in the lower courts involving similar crusades against inclusion of LGBTQ individuals within the scope of anti-bias rules. And because the baker in Masterpiece won and the gay couple unfortunately lost, Religious Right activists are already trying to spin the decision as a win for their cause.

No doubt the Court’s discussion of the Colorado commission’s “hostility” towards religion will encourage them to continue to push their claims and look for evidence of supposed animus against them in order to prevail. As they generally do now, judges and civil rights agencies should treat religious and other objectors with respect, even as they overrule those objections and insist on full and fair enforcement of civil rights laws.

But the Court’s broad language about the importance of government “hostility to a religion or a religious viewpoint” has other implications as well, particularly with respect to the treatment of religious minorities. The Constitution bars even “subtle departures from neutrality” on religion by government, the Court stated, quoting a previous decision (Church of Lukumi Babalu Aye v. City of Hialeah) that warned against “even slight suspicion that proposals for state intervention stem from animosity to religion.” 

To determine whether the government has violated its constitutional duty to be neutral towards religion, the Court explained, it is important to review “the historical background of the decision under challenge, the specific series of events leading to” the policy, and “the legislative or administrative history, including contemporaneous statements made by” decision makers.

An important question for the Court and all of us is how seriously and consistently the Court will apply these criteria. These same standards, and the same precedent in Lukumi, have been used by lawyers and scholars to argue that President Trump’s anti-Muslim travel ban is unconstitutional. In fact, the Fourth Circuit Court of Appeals cited Lukumi and employed such analysis in its 2018 decision against the current version of the ban, as did the state of Hawaii in the currently pending Supreme Court case. If the Court majority faithfully applies these criteria in the pending challenge to the travel ban, the implications could be broad indeed.

Elliot Mincberg is a senior fellow at People For the American Way and a former chief oversight counsel for the House Judiciary Committee.