Monday’s U. S. Supreme Court decision in the case of Lakewood baker Jack Phillips of Masterpiece Cakeshop focused on the Colorado Civil Rights Commission, whose action against Phillips over his refusal to make a wedding cake for a same-sex couple was overturned by the high court.
The narrowly focused Supreme Court ruling itself is likely to have little impact on Colorado’s public accommodation law, which bars discrimination, according to legal experts.
But Republican lawmakers were quick to attack the panel in the wake of the ruling, with Colorado Senate President Kevin Grantham, R-Canon City, saying the Civil Rights Commission should be “depoliticized, de-radicalized and returned to its original mission — to protect the civil liberties of all Coloradans, not just a select few.”
And the attorney who represented Phillips warned that if changes aren’t made, they’re ready to take on the state again.
In 2012, same-sex partners Charlie Craig and David Mullins asked Phillips to make a cake to celebrate their marriage. Phillips refused, citing his religious beliefs. The couple filed a complaint with the state Division of Civil Rights, which found probable cause that Phillips had discriminated, based on Colorado’s public accommodation law that says a retailer who serves the public cannot discriminate against protected classes. The Colorado Civil Rights Commission solidified that decision, ordering Phillips to change his business practices.
Phillips appealed to the Colorado Court of Appeals, which sided with the couple. The state Supreme Court declined to hear the case, basically affirming the lower court decision. Phillips then appealed to the U.S. Supreme Court, which heard the case last December.
In Monday’s ruling, Justice Anthony Kennedy, writing for the seven-justice majority, took the Colorado Civil Rights Commission to task, saying its “consideration of this case was inconsistent with the State’s obligation of religious neutrality.”
He said the commission “violated the (Constitution’s) Free Exercise Clause; and its order must be set aside.”
Elsewhere in the decision, Kennedy declared that “the Civil Rights Commission’s treatment of (Phillips’) his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection (to making the cake).”
The justice said that “at several points” during the commission’s May 30, 2014, hearing on Phillips’ actions, “commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” Kennedy accused commissioners of disparaging Phillips’ beliefs.
The ruling made it clear that the court was not making a sweeping determination about whether anti-discrimination laws can be sidestepped on religious grounds. Rather, the decision focused on what the majority of justices saw as flaws in the process used in ruling against Phillips.
Steve Chavez was director of the Colorado Division of Civil Rights when it initially ruled in favor of Craig and Mullins and against Phillips and his bakery.
“I signed and endorse the initial decision and stand by it,” Chavez told Colorado Politics. “My staff did a great job in balancing the interests of both entities. It’s unfortunate that the court focused on the issues they did instead of the overarching issue of freedom from discrimination based on sexual orientation.”
He said Monday he was baffled by the ruling, pointing out that Colorado Court of Appeals reviewed the same information as did the high court.
But he said he was pleased to see that the Supreme Court’s decision doesn’t touch Colorado’s anti-discrimination laws. He also said he agreed with Kennedy’s assertion that “adjudicatory bodies have to engage in strict neutrality with regard to these issues.”
Chavez added that he does not believe Monday’s ruling will require any change in Colorado’s anti-discrimination laws.
Professor Nancy Leong of the University of Denver College of Law believes the narrow decision says nothing about the future of cases where a retailer refuses service to a protected individual.
Leong, who specializes in civil rights and constitutional law, has been following the case since its early days. She said Kennedy’s decision was limited strictly to the facts of the case and focused more on on-the-record comments of several commissioners who expressed hostility to religious beliefs.
“Statements like these will have to be looked at closely” in some of the similar cases that are also pending. But she was clear that the ruling only affects Phillips’ case.
Attorney Christopher Jackson opined on Twitter that Kennedy’s opinion is strictly limited to the “specific conduct” of the Colorado Civil Rights Commission and offers no guidance on how to proceed in the future.
Attorney Kristen Waggoner of Alliance Defending Freedom, which represented Phillips at the high court, disagrees. The commission has to make changes with how it defines the law, she said.
“If it doesn’t, the legislature and the executive branch has a duty to remedy that. If they don’t, we’ll be back before the Supreme Court. There’s a problem with how the commission views the public accommodation law and it needs to be remedied immediately.”
Republican Rep. Dave Williams of Colorado Springs announced Monday via Twitter he would sponsor legislation in the 2019 session to reform the commission. He asked in that tweet for House Democrats to join him, but that’s unlikely, given Williams’ history of anti-LGBTQ views dating back to his days as student body president at University of Colorado-Colorado Springs.
During the 2018 legislative session, both the Division of Civil Rights and the Civil Rights Commission were up for reauthorization by the General Assembly. Conservative Republicans pledged before the session started to change the commission’s mission to prevent future decisions like Masterpiece.
House Bill 1256 started out as a simple reauthorization of the commission and division for nine years, a bill sponsored by Speaker of the House Crisanta Duran and Rep. Leslie Herod of Denver, the legislature’s first African American lesbian. Duran and Herod fought off efforts by House Republicans to change the commission’s quasi-judicial role, by allowing parties to a case to go directly to the courts and bypass the commission. Those efforts failed.
When the bill got to the Senate, Republicans changed the commission’s appointment structure to allow the legislature to make some of the nominations. That change was rejected by Duran, Herod and Gov. John Hickenlooper. The bill went to the legislature’s final hours, with a compromise that made minor changes to the appointment structure but allowed the governor to continue making all the nominations.
Jeff Hunt, director of the Centennial Institute at Colorado Christian University, believes Monday’s ruling sends a warning sign to both Duran and House Democrats who refused to allow changes to the commission’s mission.
“I think House Democrats and Duran have a lot of explaining to do,” Hunt said, noting that both Kennedy and Justice Elena Kagan had voted with conservatives in saying the commission went too far.
The fact that House Democrats wanted to keep the commission as is demonstrated that commission “is an agenda-driving operation to harm people of faith,” Hunt said. “The highest court in the nation says the commission as to change. That puts Duran and House Democrats out of touch with what’s best for Colorado.”