Within a month of the U.S. Supreme Court issuing its decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the ruling had already drawn to the court other high-profile cases questioning whether public businesses can refuse service to LGBTQ individuals based on sincerely held religious beliefs. The same week as the Masterpiece Cakeshop decision, the Arizona Court of Appeals ruled a pair of business owners cannot refuse to make artistic creations for same-sex weddings based on their religious beliefs. And on June 25, the U.S. Supreme Court sent a case back to the Washington Supreme Court to reconsider in light of the Masterpiece Cakeshop decision, when the state court has previously ruled against a florist who refused to create arrangements for a same-sex couple’s wedding.
The U.S. Supreme Court ruled baker Jack Phillips did not get a fair hearing at the Colorado Civil Rights Commission when it weighed whether he could receive a religious exemption from the Colorado Anti-Discrimination Act, but the court’s holding did not change the substance or enforcement of CADA. It has not stopped the courts in Arizona or Washington from ruling against the business owners in each instance.
Despite the narrow ruling in Masterpiece Cakeshop, experts say the nation’s highest court is unlikely to take up a similar case in the near future to untangle unresolved questions. The ruling ultimately did not address issues such as whether CADA is neutral and generally applicable or what constitutes speech.
“I think they meant it when they said these issues need to have time to percolate down in the lower courts and get resolved,” said Holland & Hart partner Steven Collis, who chairs the firm’s First Amendment practice. In its Masterpiece Cakeshop ruling, the court acknowledged the possibility of future cases involving similar facts and that lower courts must work through them first.
Collis said a glaring issue lower circuits will likely have to try untangling is what it means for a law to be neutral and generally applicable. The Supreme Court established the requirement for such an analysis for laws that infringe on religious liberty in Employment Division v. Smith, when it ruled in 1990 that a law that happens to infringe on religious liberty need not pass the strict scrutiny test if the law is otherwise neutral and generally applicable. But, he said, the Supreme Court has never closely analyzed the viability of that test.
The court has not even given a directive on whether “neutral and generally applicable” connotes one analysis, or if the two phrases should be analyzed separately. In Masterpiece Cakeshop, the court made several references to Church of the Lukumi Babalu Aye v. City of Hialeah, which affirmed that governments cannot impose regulations that show hostility toward religious beliefs, and that if a law fails the neutrality test, it has to stand up to strict scrutiny. But Collis said the Lukumi case has been the only one beside Employment Division v. Smith until Masterpiece Cakeshop came up in which the Supreme Court has really considered the test of a law’s neutrality and general applicability.
“The majority in Lukumi suggested that it’s two completely separate requirements,” he said, but Justice Antonin Scalia wrote a concurrence in Lukumi suggesting “neutral and generally applicable” should demand one analysis. “Neutrality has to do with whether or not the state is really targeting someone, and it rests in the language of racism of the past and equal treatment under the law.
“General applicability is a separate test looking at, is this law properly being applied to everyone? And in other words, are there exemptions out there, and if there are secular exemptions, then should you give religious exemptions as well to the statute?”
An Early Road Map
In Arizona’s case, Brush & Nib Studio v. City of Phoenix, business owners Breanna Koski and Joanna Duka wished to refuse to make custom-designed creations for same-sex weddings based on their religious beliefs. They argued the state’s public accommodations law violates their First Amendment rights to free speech and free exercise of religion. In ruling against the owners, the Arizona Court of Appeals ruled Brush & Nib’s business is not inherently expressive, and moreover is not protected speech, because the primary purpose is to engage in commercial sales, not convey a particular message.
Fisher Phillips associate Micah Dawson said he believes that with Masterpiece Cakeshop and cases cited within the ruling, the Supreme Court has laid an initial road map for determining whether a law infringes too much on religious liberty to the point of unconstitutionality. The case frequently cited Rumsfeld v. Forum for Academic and Institutional Rights, which in 2005 upheld the Constitution’s Solomon Amendment that allows withholding some federal money from colleges and universities that do not allow U.S. military recruiters the same access to students that other employers are given. The Rumsfeld precedent affirmed that if a regulation happens to burden free speech but its main purpose is preventing discrimination, the burden is merely incidental.
Dawson also said he believes the Brush & Nib case did a good job of recognizing that Masterpiece Cakeshop reinforced the requirement for regulators to equally consider anti-discrimination interests against other constitutional freedoms.
“It’s just more of a balancing at the state level than it is, ‘One of these categories is more important than the other,’” he said. “I’m glad that they recognized that, and then using Masterpiece as that mechanism is surprisingly the right interpretation.”
But relating to the need for lower courts to examine the meaning of neutrality and general applicability, Collis said he believes Arizona’s decision doesn’t contain enough analysis of the case’s facts about how the law was specifically applied to Brush & Nib, and instead relies on the finding that Phoenix’s public accommodations law is neutral as written. A more sensible ruling, he said, would have been to remand the case back to the district court for more discovery.
“I think the same thing could be said of the Colorado statute,” Collis said. “I don’t think there was anything in there to suggest they were targeting religious people … who hold Jack Phillips’ views. But it was how it was applied that made it a problem, and so it’s interesting that in Arizona, they simply relied on how the statute was passed, and there doesn’t seem to have been a ton of discussion about how is it actually being applied.”
He believes going forward in these types of cases, state regulators will need to consider whether their personal views affect their willingness to apply anti-discrimination statutes equally to different types of interests that come up, be it religion or LGBTQ rights. “Are state regulators willing to apply these standards equally to both sides of these debates?”
A key indicator of that willingness in the Masterpiece Cakeshop case was the disparaging comments made about Phillips’ religion that ultimately proved the Colorado Civil Rights Commission’s undoing.
Dawson said those disparaging comments added a layer of complication to the Masterpiece Cakeshop case that made it not the ideal one for the Supreme Court to decide more complex issues, such as what constitutes speech or whether CADA is neutral and generally applicable.
“So I think they’ll wait for one where either it is just only the free speech issue, or it’s just the discrimination issue,” he said. “And if they’re intertwined, hopefully there’s not additional facts that allow for the third type of analysis.”