By: Mark Satta<\/p>\n
In Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, <\/em>138 S. Ct. 1719 (2018), the Supreme Court\u2019s seven-member majority claimed that the Colorado Civil Rights Commission had exhibited \u201chostility\u201d toward a Colorado baker\u2019s religious beliefs.[1]<\/a> But upon closer examination, the Court\u2019s claims belie an uncharitable, perhaps even hostile, interpretation of the Colorado Civil Rights Commission. Here I offer some important context for the Colorado Civil Rights Commission\u2019s ruling; context that the Court overlooked. This added context undercuts the Court\u2019s claim that the Colorado Civil Rights Commission exhibited hostility to religion in its ruling against the baker.<\/p>\n On June 4, 2018, in a 7-2 decision, the Supreme Court of the United States \u201cinvalidated\u201d a ruling of the Colorado Court of Appeals in Masterpiece Cakeshop v. Colorado.<\/em>[2]<\/a> The Colorado court had upheld a Colorado Civil Rights Commission ruling that a baker violated Colorado\u2019s Anti-Discrimination Act by refusing to make a wedding cake for a same-sex couple. In invalidating the Court of Appeals\u2019 ruling, the Supreme Court didn\u2019t take a position on the substantive issues of whether the baker\u2019s free speech or religious free exercise rights permitted him to refuse to make the same-sex couple\u2019s wedding cake. Rather, the Court invalidated Colorado\u2019s ruling because the Civil Rights Commission had exhibited hostility toward the baker.<\/p>\n Justice Anthony Kennedy wrote the opinion for the majority. The bulk of Kennedy\u2019s argument focused on statements made by two of the seven members of the Colorado Civil Rights Commission, which he claimed exhibited hostility toward the baker\u2019s religious belief. He also cited the fact that \u201c[n]o commissioners objected to the comments\u201d and that they were not \u201cdisavowed\u201d in later proceedings as evidence of the Commission\u2019s hostility.[3]<\/a><\/p>\n In isolation, at least some of the quotes Kennedy offered in his opinion can reasonably be interpreted as exhibiting hostility toward the baker\u2019s religious beliefs. But upon closer inspection and with additional context added, this interpretation loses much of its plausibility. In the end, one could reasonably conclude that it is Kennedy that is hostile to the Commission rather than the Commission to the baker.<\/p>\n In what follows, I lay out how Kennedy describes the quotes he cites from the Commission, and then go on to provide additional context for the quotes Kennedy offers. I argue that, once contextualized, Kennedy\u2019s reading of the Commission becomes significantly less plausible. I then close by looking at Kennedy\u2019s past jurisprudence around hostility toward religion, arguing that Kennedy has a much broader conception of hostility to religion than most other Justices.<\/p>\n <\/p>\n I. Uncharitable Interpretations and Unclear Hostility in Masterpiece<\/em><\/strong><\/p>\n Kennedy offered statements made by two members of the seven-member Colorado Civil Rights Commission as evidence of the Commission\u2019s hostility.[4]<\/a><\/p>\n First, Kennedy provides two claims made by Commissioner Raju Jairam. Kennedy writes that Jairam \u201csuggested that Phillips can believe \u2018what he wants to believe,\u2019 but cannot act on his religious beliefs \u2018if he decides to do business in the state.\u2019\u201d[5]<\/a> Kennedy also cites Jairam\u2019s claim that \u201cif a businessman wants to do business in the state and he\u2019s got an issue with the\u2014the law\u2019s impacting his personal belief system, he needs to look at being able to compromise.\u201d[6]<\/a> Kennedy acknowledges that these statements are ambiguous:<\/p>\n \u201cStanding alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor\u2019s personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips\u2019 free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.\u201d[7]<\/a><\/p>\n It\u2019s unclear whether \u201cthe comments that followed\u201d that Kennedy refers to are the comments that follow in Kennedy\u2019s majority opinion or the comments that followed in the original Commission hearing that Kennedy is quoting from. Because Kennedy is unclear on this point, let\u2019s consider both interpretations.<\/p>\n In looking at the comments that surround Jairam\u2019s statements in the transcript for the Commission hearing, it is hard to see anything that lends credence to Kennedy\u2019s interpretation of Jairam\u2019s remarks as \u201cinappropriate and dismissive comments showing lack of due consideration for Phillips\u2019 free exercise rights and the dilemma he faced.\u201d At the hearing leading up to the first comment Kennedy cites, another one of the Commissioners, Diann Rice, was offer her reasoning for thinking that the law under which charges against the baker were brought was a constitutional law. The transcript from the hearing quotes Rice as saying the following:<\/p>\n \u201cI think that the Colorado Antidiscrimination Act is written in a very neutral manner. Some exceptions have been made for religious organizations or businesses or organizations that clearly serve a single sex. As noted a women\u2019s clinic or some organization like that. But those are very clear\u2014clearly delineated exceptions. If Masterpiece Cakeshop were\u2014or Mr. Phillips were an ordained minister and he was only serving commissioners or congregates of his church, that might be a different situation. But he is\u2014does have a public business and is serving the public. So I\u2014you know, I don\u2019t think that this case falls within the exceptions . . . I think there is a very significant and important reason for the Antidiscrimination Act and a significant\u2014it is a significant benefit to the state to have this statute and to enforce it.\u201d[8]<\/a><\/p>\n After Rice concluded, the Commission Chair, Katina Banks, acknowledged Rice\u2019s comments, agreed with them, and asked \u201cdoes anyone else have anything they want to add?\u201d It is at this point that Jairam spoke. The meeting transcript records a back and forth between Jairam and Banks as follows.<\/p>\n Commissioner Jairam: I don\u2019t think the act necessarily prevents Mr. Phillips from believing what he wants to believe. And\u2014but if he decided to do business in the state, he\u2019s got to follow (inaudible). And I don\u2019t think the Act is overreaching to the extent that it prevents him from exercising his free speech.<\/p>\n Chairwoman: Well, free speech we already\u2014we talked about. But what do you think about his\u2014<\/p>\n Commissioner Jairam: His belief system, yes.<\/p>\n Chairwoman: Right, right, his religious beliefs.<\/p>\n Commissioner Jairam: We all have our own belief systems.<\/p>\n Chairwoman: Yes.<\/p>\n Commissioner Jairam: And, you know, as a businessman, I shouldn\u2019t allow my belief system to impact how I treat people, bottom line.<\/p>\n Chairwoman: Okay. That is the bottom line, Commissioner Jairam, thank you . . . To make sure I\u2019m understanding, we\u2019re saying that we think the statute\u2014there are good reasons for the statute; that it is valid; and that it\u2019s neutral in general in its application simply\u2014just as the administrative law judge determined.[9]<\/a><\/p>\n There are several things that are illuminated once this additional context has been given.<\/p>\n First, the Commission clearly has as one of its values that Colorado law be neutral toward religion (as evidenced by the comments of Rice and Banks).<\/p>\n Second, the Commission offered a cogent rationale for concluding that the law in question was neutral toward religion.<\/p>\n Third, Jairam seemed to be making an important and long-held distinction in United States First Amendment jurisprudence\u2014namely, that the right to religious belief is absolute, but that the right to religious action is not. [10]<\/a> Jairam seems to be making a point about the ability of the state to impose reasonable and neutral restrictions on actions, even while the right of belief remains absolute.<\/p>\n Fourth, the conversation is one that is blending together questions about free speech with questions about free exercise of religion.<\/p>\n In that light, it takes a very uncharitable reading to attribute to Jairam the views that Kennedy does.<\/p>\n The context surrounding Jairam\u2019s second quote even more strongly undercuts Kennedy\u2019s interpretation. In the second quote, Jairam responded to \u201can argument by the respondent\u201d that \u201che didn\u2019t offer to sell them a wedding cake, but he offered to sell them different products.\u201d[11]<\/a> In expressing why he didn\u2019t find that argument compelling, Jairam is on record as stating the following:<\/p>\n \u201cAnd I believe the\u2014it was best said by the judges in the New Mexico case, where the laws are here just to protect individuals from humiliation and dignitary harm. And that they should be very clear, that is, we do not want people to feel undignified when they walk into any place of business and do business that, you know, serves the public.\u201d<\/p>\n \u201cAnd I will also, you know, refer\u2014you know, I\u2019m referring to the comments made by Justice (inaudible) in that case. And essentially, he was saying that if a businessman wants to do business in the state and he\u2019s got an issue with the\u2014the law\u2019s impacting his personal belief system, he needs to look at being able to compromise. And I think it was very well said by that judge.\u201d[12]<\/a><\/p>\n The added context presents the reader with a significant detail Kennedy overlooks: Jairam was offering a paraphrase of a New Mexico judge, not his own view. Once again it seems to me very plausible that Jairam\u2019s underlying point distinguishes between the absolute right to belief and the more limited right to action, especially when acting as a proprietor in the public sphere. Taken more fully in context, Justice Kennedy\u2019s conclusion that Jairam made \u201cinappropriate and dismissive comments showing lack of due consideration for Phillips\u2019 free exercise rights\u201d seem not only uncharitable, but implausible full-stop.<\/p>\n But as stated earlier, Kennedy writes ambiguously about whether it is the context of the Commission hearing or the subsequent portion of his opinion that is supposed to make it clearer that Jairum\u2019s comments exhibited hostility to religion. Having discussed Jairum\u2019s statements, I turn to the subsequent portion of Kennedy\u2019s opinion.<\/p>\n After offering Jairam\u2019s comments as evidence of hostility toward the baker\u2019s religious beliefs, Kennedy cites a statement from a second commissioner at a later hearing. The transcript attributes the statement to a \u201cfemale speaker.\u201d The speaker is recorded as saying the following.<\/p>\n \u201cI would also like to reiterate what we said in the hearing for the last meeting. 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\u2014I mean, we\u2014we 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\u2014to use their religion to hurt others.\u201d[13]<\/a><\/p>\n In discussing this quote Kennedy writes that,<\/p>\n \u201cTo describe a man\u2019s faith as \u2018one of the most despicable pieces of rhetoric that people can use\u2019 is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical\u2014something insubstantial and even insincere. The commissioner even went so far as to compare Phillips\u2019 invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado\u2019s antidiscrimination law\u2014a law that protects against discrimination on the basis of religion as well as sexual orientation.\u201d[14]<\/a><\/p>\n At first blush, the second speaker\u2019s comments more plausibly indicate hostility toward the baker\u2019s religious belief than Jairam\u2019s. But context once again complicates things, as does a careful look at what Hess actually said.<\/p>\n First, unlike Jairam\u2019s comment, the context surrounding this quote provides much less guidance about the second speaker\u2019s intentions. The second speaker\u2019s remarks were offered very near the close of the meeting, after the Chair asked each member for any closing comments they wanted to offer before a final motion. The quote commissioner was the last to offer a comment, and she did so after the conversation seemed to have mostly wrapped up. These complicating circumstances make it difficult to be sure how her comment connected to the remarks that preceded it.<\/p>\n To Kennedy, the fact that \u201c[t]he record shows no objection to these comments from other commissioners,\u201d is evidence of hostility toward the baker\u2019s religion from the commission as a whole.[15]<\/a>\u00a0 But it\u2019s not clear what purpose responding to the comment would have served given that unidentified commissioner\u2019s statement doesn\u2019t seem to have been material to the rest of the discussion or to the outcome of any motions. Rather, it seemed to merely have been offered as a personal sentiment at a time when the Chair allowed each member to say a few final words.<\/p>\n Second, while it may be reasonable for Kennedy to assume that Hess\u2019s comment was about the baker\u2019s belief, Hess never actually references the baker in her comments at all. Rather, all Hess states are some (true) historical claims followed by her opinion that it is despicable rhetoric to use religion to hurt people. But, given the comment\u2019s acontextual nature, Commissioner Hess could just as easily be commenting about the possibility that the baker was feigning sincerely held belief in order to legally justify his discrimination. Hess\u2019s comment is mysterious. It\u2019s an expression of sentiment, but it\u2019s not at all clear how the sentiment was meant to map onto the case at hand or onto the baker\u2019s beliefs.<\/p>\n Although Justice Kennedy interpreted both Jairam\u2019s and the second commissioner\u2019s comments in the light most favorable for the baker, there are important differences between the two. In Jairam\u2019s case, only an uncharitable reading indicates any hostility toward the baker\u2019s religious beliefs. In the second speaker\u2019s case, it is plausible that she exhibited hostility toward Phillips\u2019 religion, but if we look at what she actually said and at the context in which she said it, it is not obvious that this is so.<\/p>\n The majority\u2019s finding that the Colorado Civil Rights Commission\u2019s hostility warranted overturning the lower court becomes even harder to understand in light of Justice Ruth Bader Ginsburg\u2019s observation that these comments were made by only \u201cone or two members of one of the four decisionmaking entities considering this case<\/em>.\u201d[16]<\/a><\/p>\n Kennedy failed to consider the multiple reasonable interpretations of the commissioners\u2019 comments that were available. Given this ambiguity, it would have been more prudent to remand the case for further investigation or to articulate a clearer and more nuanced principle about what should happen when one layer in a multi-level adjudication may have been affected by bias. But Kennedy instead confidently claimed that the elements of hostility were \u201cclear\u201d and invalidated the ruling of the lower Court without remand.[17]<\/a><\/p>\n <\/p>\n II. Justice Kennedy’s Expansive Understanding of “Hostility to Religion”<\/strong><\/p>\n What explains Kennedy\u2019s eagerness to go to such lengths to invalidate the lower court\u2019s decision on grounds of \u201chostility\u201d to the baker\u2019s religious beliefs? The answer may come, in part, from the fact that throughout his tenure on the Supreme Court, Anthony Kennedy embraced a broader conception of what constitutes hostility to religion than most of his colleagues.<\/p>\n For example, Kennedy first expressed his views on hostility to religion in the consolidated case of County of Allegheny v. American Civil Liberties Union<\/em>, where the Court held that a creche displayed alone at the Allegheny County Courthouse violated the First Amendment but that a Menorah that was part of a larger holiday display at the City-County Building did not.[18]<\/a> Kennedy stated that the majority\u2019s opinion reflected \u201can unjustified hostility toward religion\u201d and \u201ca hostility inconsistent with our history and our precedents.\u201d[19]<\/a><\/p>\n Kennedy argued that \u201crather than requiring government to avoid any action that acknowledges or aids religion, the Establishment Clause permits government some latitude in recognizing and accommodating the central role religion plays in our society\u201d and that \u201c[a]ny approach less sensitive to our heritage would border on latent hostility toward religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion and so to the detriment of the religious.\u201d[20]<\/a><\/p>\n Kennedy\u2019s statements imply that anything less than limited accommodation of religion is \u201clatent hostility toward religion.\u201d This is a much stronger view than has been typical of the Court since the 1950s.[21]<\/a><\/p>\n Justice Kennedy\u2019s comments resulted in swift and strong rebuttals from several of his colleagues on the Court. Justice Harry Blackmun, for example, who penned the opinion for the Court in Allegheny<\/em>, explicitly rejected Kennedy\u2019s deviation from precedent. Blackmun wrote the following sharp rebuke in response:<\/p>\n \u201cAlthough Justice Kennedy repeatedly accuses the Court of harboring a \u2018latent hostility\u2019 or \u2018callous indifference\u2019 toward religion, nothing could be further from the truth, and the accusations could be said to be as offensive as they are absurd. Justice Kennedy apparently has misperceived a respect for religious pluralism, a respect commanded by the Constitution, as hostility or indifference to religion. No misperception could be more antithetical to the values embodied in the Establishment Clause.\u201d[22]<\/a><\/p>\n Similarly, Justice Sandra Day O\u2019Connor\u2019s concurrence praised the values of religious pluralism and rejected Kennedy\u2019s characterization of hostility to religion, writing that:<\/p>\n \u201cContrary to Justice Kennedy’s assertions, neither the endorsement test nor its application in these cases reflects \u2018an unjustified hostility toward religion.\u2019 Instead, the endorsement standard recognizes that the religious liberty so precious to the citizens who make up our diverse country is protected, not impeded, when government avoids endorsing religion or favoring particular beliefs over others.\u201d[23]<\/a><\/p>\n Justice John Paul Stevens also rebutted Kennedy\u2019s position at two different points in his own dissent. Citing Everson, <\/em>Stevens wrote that, \u201c[t]he suggestion that the only alternative to governmental support of religion is governmental hostility to it represents a giant step backward in our Religion Clause jurisprudence.\u201d[24]<\/a><\/p>\n Kennedy\u2019s view about what constituted hostility to religion was an outlier view when he first joined the Court, and with good reason. But in Masterpiece <\/em>Kennedy may have finally been able to make his view mainstream. But an overly sensitive test for religious hostility on behalf of those seeking to preserve the rights of others (like the Colorado Civil Rights Commission) is bad for our democracy. It can create a false sense of victimization on the part of those whose religious exercise is even mildly burdened by laws otherwise intended to protect the rights of marginalized persons.<\/p>\n The repercussions from that sense of victimization are already occurring following the Masterpiece <\/em>case. The baker in the case, Jack Phillips, is currently suing the state of Colorado for exhibiting hostility to his religious beliefs and for violation of his constitutional rights. Phillips\u2019 case relies heavily on the Supreme Court\u2019s conclusion in Masterpiece<\/em>. By giving Phillips this unwarranted platform, additional harm results from the Court\u2019s knee-jerk conclusion that there was hostility toward Phillips on the part of Colorado.<\/p>\n [1]<\/a> Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1729 (2018).<\/p>\n [2]<\/a> Id. <\/em>at 1732.<\/p>\n [3]<\/a> Id. <\/em>at 1721.<\/p>\n [4]<\/a> Copies of the transcripts from the Commission hearings under discussion can be found here<\/a>.<\/p>\n [5]<\/a> Id. <\/em>at 1729.<\/p>\n [6]<\/a> Id.<\/em><\/p>\n [7]<\/a> Id.<\/em><\/p>\n [8]<\/a> Transcript of Colorado Civil Rights Commission Meeting, May 30, 2014, 22\u201323.<\/p>\n [9]<\/a> Id. <\/em>at 23\u201324.<\/p>\n [10]<\/a> See, e.g<\/em>., Reynolds v. United States, 98 U.S. 145, 166\u201367 (1878).<\/p>\n [11]<\/a> Tr. at 29.<\/p>\n [12]<\/a> Id. <\/em>at 29\u201330.<\/p>\n [13]<\/a> Transcript of Colorado Civil Rights Commission Meeting, July 25, 2014, 11\u201312.<\/p>\n [14]<\/a> Masterpiece, <\/em>138 S. Ct. at 1729.<\/p>\n [15]<\/a> Id.<\/em><\/p>\n [16]<\/a> Id. <\/em>at 1749 (Ginsberg, J., dissenting) (emphasis added).<\/p>\n [17]<\/a> Id. <\/em>at 1729.<\/p>\n [18]<\/a> County of Allegheny v. ACLU, 492 U.S. 573, 578\u2013579 (1989).<\/p>\n [19]<\/a> Allegheny<\/em>, 492 U.S. at 655 (Kennedy, J., dissenting).<\/p>\n [20]<\/a> Id. <\/em>at 658<\/p>\n [21]<\/a> See<\/em>, Frank S. Ravitch. The Supreme Court\u2019s Rhetorical Hostility: What is \u2018Hostile\u2019 to Religion Under the Establishment Clause? <\/em>2004 B.Y.U. L. REV. 1031 (2004).<\/p>\n [22]<\/a> Allegheny<\/em>, 492 U.S. at 612\u201313 (1989) (internal citations omitted).<\/p>\n [23]<\/a> Id. <\/em>at 631 (O\u2019Connor, J., concurring) (internal quotations omitted).<\/p>\n