SCOTUS: Colorado Civil Rights Commission Exhibited Anti-Christian Bias

…To Phillips, his claim that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. His dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages per- formed in the State and before this Court issued United States v. Windsor, 570 U. S. 744, or Obergefell. Given the State’s position at the time, there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. Indeed, while the instant en- forcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declin- ing to create cakes with decorations that demeaned gay persons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case. Pp. 9–12.

(b) 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 moti- vating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.

Another indication of hostility is the different treatment of Phillips’ case and the cases of other bakers with objections to anti-gay mes- sages who prevailed before the Commission. The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips’ willingness to do the same irrelevant. The State Court of Appeals’ brief discussion of this disparity of treatment does not an- swer Phillips’ concern that the State’s practice was to disfavor the religious basis of his objection. Pp. 12–16.

(c) For these reasons, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. The government, consistent with the Constitution’s guarantee of free ex- ercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520. Factors relevant to the assessment of governmental neu- trality include “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the deci- sionmaking body.” Id., at 540. In view of these factors, the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of his religious beliefs. The Commission gave “every appearance,” id., at 545, of adjudicating his religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it, id., at 537, but government has no role in expressing or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate. The inference here is thus that Phillips’ religious objection was not considered with the neutrality required by the Free Exercise Clause. The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. But the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that re- quirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same…..

Justice Kennedy for the majority in “Masterpiece Cakeshop LTD et al. V. Colorado Civil Rights Commission et al.,” June 4, 2018.

    Post authored by:

  • R. Scott Clark
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    R.Scott Clark is the President of the Heidelberg Reformation Association, the author and editor of, and contributor to several books and the author of many articles. He has taught church history and historical theology since 1997 at Westminster Seminary California. He has also taught at Wheaton College, Reformed Theological Seminary, and Concordia University. He has hosted the Heidelblog since 2007.

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12 comments

  1. Went there and hugged Jack today. Bought cookies for my grandkids. It was great to know we still live in america today.

  2. It’s grand that the good guy won, but (and this isn’t an original reflection) it’s akin to a football game in which the offense has easily marched down the field to the defense’s 20-yard line, and the defense was finally lined up correctly, executed its assignments, and the offense threw a poor pass which went incomplete. That’s about it. The scope of the majority decision was very narrow, and it did little to nothing for the concepts of religious freedom, freedom of association, freedom of contract, and rights of private property ownership. The baker won, the freedom-haters lost, and it’s a nice event. But no great legal precedent was set. ~sigh~

  3. I disagree. If the court had upheld Colorado’s reasoning for finding Jack violated the civil Rights act of the state then Christianity would be, throughout the land, the enemy of the state and all practioners enemies also. This is what Justice Kennedy avoided and is a broad ruling of the case. And this is what Colorado was attempting to do as a matter of law, to push back against the Christian enclaves in the state who opposed the advancement of LGBT objectives by state authorities. This is why he pointed out the discrepancy between how protection of expression varied in cases where bakers were asked to make anti gay marriage cakes. How the court will resolve the conflict between the civil Rights act of 1964 (modified) with this ruling is to be seen.

  4. Dr. Albert Mohler’s comments on this decision on The Briefing yesterday (Tuesday June 5) are especially insightful. At https://albertmohler.com/2018/06/05/briefing-6-5-18/, around the 9 min. mark, he highlights that the Court confirmed that the government has no authority to judge the legitimacy or illegitimacy of *any* religious view. (Yes, I’m aware of the dangers and traps here, the potential conflicts with natural law, existing legislation, case law, etc.) This is an important point that I’ve haven’t seen discussed anywhere else. So, it seems that buried beneath the details particular to this case is an affirmation of religious liberty under the U. S. Constitution.

  5. Not only can religious convictions be held, which is what the commission agreed with, but they can be expressed in the public incidentally in commerce, or in Philips’ case, not to be coerced by the state to make expressions contrary to religious convuctions. It should be noted Kennedy saw Philips’ convictions as based on reasonable religious views as opposed to white supremacist religious views which were considered civil in nature along with nazism

    • Thomas,

      I hope you’re right but I fear that Obergefell is this generation’s Roe. It must be protected at all cost.

      The idea of the court judging “reasonable religious views” bears unhappy potential.

      • Reasonable not as a judgement of such views, which would contradict its own ruling, but reasonable as distinguish from what the court has found, for example, racist quasi religious views. In the case of arian supremist religions you are free to hold the religious view but can not bring the racist element into the public arena. Philips views were deemed not to have that element and the attempt by the the state was to make it equivalent with racists was differentiated by the court. Imagine if they had ruled otherwise. I dare say we would be arming ourselves in revolt against the state. Lgbt have rights but not to the level of race distinction. That seems to be what kennedy is saying. We shall see how this distinction is applied in the florist case.

  6. When I lived in Taiwan, I met an old man from Heilongjiang who had lived there when it was the Japanese puppet state of Manchuria, then saw the Chinese Civil War, and then had to flee to Taiwan. He held that the Japanese were better than the Communists, because, “Under the Japanese, you at least had the freedom to remain silent.”

    We should never trust a modern Leftist who says he’s willing to allow us our private convictions. Back in the 1970’s, the Immoderate Left told us that the personal is political. This, more than anything else, is the charter of a 1984-style Thought Police and everything else that will make all First Amendment rights a dead letter.

  7. I essentially agree with you Dr. Clark. I’m describing how the court is seeking to make decisions based on precedences. Judge Robert Bork describes how constitutional jurisprudence has been corrupted in The Tempting of America 1990. The issue at the time was abortion but the line of case law traces back to the post civil war amendments namely the 14th. Use of the commerce clause to force social justice finds it’s origin in civil rights for black Americans. Here’s my bone to pick. I agree that all liberty envisioned by our founding fathers have been subverted by a long list of scotus decisions. But when we had such liberty where was the church in condemning racism and excommunicating those who practiced it. We are reaping the whirlwind of the Church’s sin. This was set in motion years ago and what we see today is the consequence.

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