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Supreme Court Masterpiece Cakeshop decision case disappoints LGBTQ advocates but does not undermine civil rights protections 

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LGBTQ-rights advocates have been watching Masterpiece Cakeshop, Ltd. vs. Colorado Civil Rights Commission work its way through the U.S. Supreme Court with bated breath, and on Monday, June 4, the Court finally released its ruling.

It’s not the answer we hoped for, but it’s also not entirely the answer we feared. The Supreme Court did rule in favor of Masterpiece Cakeshop, which denied service to a gay couple in 2012 based on baker Jack Phillips’ religious beliefs. (Find a queer-Christian perspective on that here.)

Many expected Monday’s ruling to set landmark precedent in cases of freedom of speech versus the civil rights of protected people such as LGBTQ individuals, but the Supreme Court’s 7-2 ruling did not suggest that businesses may discriminate against same-sex couples (though some folks on both ideological sides of the issue will likely interpret it that way). Instead, the Court stuck to the particular circumstances of this case, which are so specific — according to James Esseks, director of the American Civil Liberties Union’s LGBT & HIV Project — that this ruling likely cannot be used as a precedent as similar cases work through lower courts nationwide.

Rather than asserting that Phillips was right all along, the ruling instead focuses on Phillips alleged mistreatment at the hands of the Colorado Civil Rights Commission, which ruled against Phillips initially.

According to the U.S. Supreme Court, the Colorado Civil Rights Commission did not conduct its investigation, or deliver its decision, with the neutrality required by a governmental body. The full Supreme Court ruling describes the Commission’s attitude of hostility toward religion, specifically mentioning three cases in which the Commission ruled in favor of bakers who refused to write anti-gay messages on their cakes, claiming that the bakers should not be required to promote offensive language or agendas. In the eyes of the Supreme Court, the Civil Rights Commission failed to apply that same logic to Phillips’ case, and fell back on their own ideas of what constitutes "offensive language."

In addition, the ruling mentions a specific instance in which one person on the Civil Rights Commission panel likened Phillips’ religious beliefs to those that were used to justify slavery and the holocaust. According to the Court, that statement stands as evidence of the Commission’s bias against Phillips’ religious convictions.

The opinion of the Court states: “Phillips too [in addition to the bakers who refused to put anti-gay propaganda on their cakes] was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case. [That] consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.”

Whether or not advocates agree with the ruling, there is no doubt that this is not the decision LGBTQ people feared it would be, and shouldn't have far-reaching consequences for LGBTQ people and families.

In a teleconference shortly following the Court’s decision, Esseks of the ACLU said that “if you look at what the bakery was arguing, and what the court did here, the bakery may have won the battle, but it has lost the war.”

That is largely due to the fact that the reasons for the Supreme Court’s support of Masterpiece Cakeshop are dependent entirely on the facts of this particular case, and the language of the decision reasserts the importance of civil rights protections — rather vehemently, in fact.

Esseks asserts that this case is closed, and will not add fuel to the fire of the religious right, who had hoped this ruling might support similar cases elsewhere in the country.

“I think there is an intentional campaign out there of people who are opposed to LGBT rights, but also to equality more broadly,” Esseks said, “and they’re trying to use claims of religious freedom and claims of free speech in order to undermine civil rights protections... and this case was part of that campaign. ... That is what the advocates on the other side of this case were in it for, and that is exactly what they didn’t get from the Supreme Court today.”

The takeaway here is that the ruling in the Masterpiece Cakeshop case has not undermined civil rights protections on a nationwide or even statewide level.

One Colorado, the state’s largest LGBTQ advocacy organization, said in a statement: “We strongly believe that the freedom of religion must be defended as one of our most fundamental values as Americans, but that freedom cannot be used to harm others or discriminate against others. Coloradans across our state – including LGBTQ Coloradans and their families – can take heart from today’s decision that no matter who you are, who you love, or what you believe, you will still be protected in our state from discrimination in the areas of employment, housing, and public accommodations.”

Another LGBTQ advocacy group, the Family Equality Council, reiterated the point, saying: "While [the Supreme Court] did rule in the baker's favor, they did so just in this specific case, and only because they felt that the Colorado Civil Rights Commission's language was not respectful of the baker's religious beliefs. To be clear, the Justices' decision did not create any new exemptions to existing laws that prohibit discrimination against our families."

Gov. John Hickenlooper released a statement Monday afternoon, affirming that Colorado's anti-discrimination laws remain in place. "While we are disappointed with the decision," he said, "we take seriously the Court’s admonition that the state must apply its laws and regulations in a manner that is neutral toward religion. We have no doubt that the Colorado Civil Rights Commission will meet that standard as they listen, respectfully, to all sides of the matters that come before it and issue decisions that uphold the protections afforded under Colorado law."

The Civil Rights Division's official statement in response to the news was measured and factual, and did not directly address the allegations of bias raised in the Supreme Court decision, saying only that it respects the ruling, and the Civil Rights Commission will "continue with their function."

The culture war between religious freedom of speech and LGBTQ civil rights will no doubt continue with religious exemption bills introduced in state legislatures (like those introduced in Colorado in 2018), and cases similar to Masterpiece Cakeshop, Ltd. vs. Colorado Civil Rights Commission, but any national, legal decision in that culture war will have to come another day.

Charlie Craig and Dave Mullins, the couple to whom Phillips denied service in 2012, expressed their disappointment in the ruling, but vowed to keep fighting for equal rights. “We want to thank the state of Colorado for standing by us throughout this entire process,” Mullins said. “It has made us feel that the state we call home has had our back every step of the way.”

For a more detailed look at some aspects of the ruling, read a full transcription of Esseks’ initial statement to reporters below:

The ruling here was based on facts that are entirely specific to this particular case and to concerns that the court had about bias, or potential bias, by the Colorado Civil Rights Commission. And we certainly believe that government agencies that determine civil rights complaints or anything else need to be impartial. But I think if you look at what the bakery was arguing, and what the court did here, the bakery may have won the battle, but it has lost the war. And that’s because this decision is [very unlikely] to be repeated in any other circumstance. And the broad rule that the bakery was looking for here was that it had a license under the constitution to discriminate among its customers based on who they were.

And they most emphatically did not get that ruling from this court today. Instead the court made quite clear that it was not buying what the bakery was selling here. In no place in the decision [does it say] there is a right for businesses to discriminate. It recognized that while clergy, of course, have a constitutional right to refuse to marry same-sex couples if that is not part of their religious tradition, the court cautions that expanding that right of clergy to businesses would undermine civil rights laws and license discrimination in many contexts and against many people all across our country. The Court, in fact, signaled that it was worried about that line of argument, because it could result in businesses putting up signs in their windows saying ‘wedding cakes for heterosexuals only,’ or photographs only for men’ — that’s not the language in the opinion, but that’s the principle and the concern that the Court was articulating.

And the Court in its decision also recognized again and again the harm that such discrimination can create, that its creating community-wide stigma — in the words of Justice Kennedy, “community-wide stigma that’s inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services and public accommodations.” So on the big issue the bakery was pushing in this case, getting a constitutionally based license to discriminate, they did not succeed, and all of the signs from the Court, the language about that issue, suggest that, in fact, the court will not adopt and will not embrace that kind of a rule. 
Editor's note: The original version of this story was edited to include comments from Gov. John Hickenlooper and the Colorado Civil Rights Division.

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