Twenty-eight states and the federal government currently permit business owners to discriminate on the basis of sexual orientation. That one rarely hears of them doing so is a testimony to the power of the free market. Businesses have profound incentives to serve customers, not turn them away.
Over the past decade, approximately twenty cases have arisen in which creative professionals have declined to participate in same-sex wedding ceremonies. These bakers, florists, and photographers do not dispute the validity of their states’ anti-discrimination laws, but have instead asked for their religious convictions to be accommodated. America has a long history of accommodating religious citizens, and in virtually all cases there is no reason to believe that doing so has hindered the common good.
The business owners in these cases all deny that they discriminate on the basis of sexual orientation per se. They all regularly served members of the LGBTQ community; their contention is simply that they should not be forced to participate in same-sex wedding ceremonies against their religious beliefs. They have also argued that they may not be compelled to communicate messages with which they disagree.
The United States Supreme Court had a wonderful opportunity to resolve these issues in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Alas, the justices refused to do so.
This particular case involved Jack Phillips, a baker who declined to bake a cake to celebrate a same sex wedding in 2012. Same sex marriages were not legally recognized in the State at the time, but the couple planned to get married in Massachusetts and celebrate their union in Colorado. They filed a complaint with the Colorado Civil Rights Commission (CCRC), which found probable cause of a violation and referred the case to an administrative law judge (ALJ). The ALJ ruled against Phillips, the Commission (which had referred the case to the judge—welcome to the bizarre world of administrative law!) upheld the ruling, as did the Colorado Court of Appeals.
(I attended the administrative law hearing for a virtually identical case in Oregon. According to Herb Grey, the Oregon bakers’ attorney, in this case “the original complaint went to the Bureau of Labor and Industry (BOLI), it was investigated by BOLI, ‘formal charges’ were brought by BOLI ‘prosecutors,’ the pretrial rulings and hearing were conducted by an ALJ employed by BOLI who did not have a law degree, BOLI ‘prosecutors’ presented BOLI’s case to the BOLI ALJ, and the ALJ’s findings and conclusions were then incorporated in a final order by the BOLI Commissioner, who had earlier expressed his opinion about the case in media and social media.” Franz Kafka would be proud!)
In the Masterpiece case, seven justices agreed that the CCRC acted with such obvious animus against Phillip’s religious convictions that it violated the First Amendment’s Free Exercise Clause. In the majority opinion, Justice Kennedy noted that one Commissioner described Phillips’ “faith as ‘one of the most despicable pieces of rhetoric that people can use’” and explained that it was constitutionally problematic to “disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.” Kennedy also noted that at the time of Phillips’ hearing, other Commissioners made similar comments and that no one on the CCRC seemed to understand that bias against religious faith was inappropriate.
In contrast to the Phillips case, the CCRC found nothing amiss when three other bakeries declined to create cakes “with messages disapproving same-sex marriage on religious grounds.”
This sort of anti-religious bias, it is worth noting, is not just a state problem. In its 2016 report “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties,” the United States Civil Rights Commission displayed similar animus towards disfavored religious convictions. For example, Martin R. Castro, the Commission’s Chair, noted in his personal statement that: “The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.” A majority of the Commissioners recommended the repealing or curtailing laws passed by bipartisan majorities that have offered significant protection to persons of faith.
In Employment Division v. Smith (1990), the Court held that the Free Exercise clause requires merely that laws be neutral with respect to religion. If they inadvertently keep religious citizens from acting according to their convictions, legislatures may, but do not have to, accommodate them. But if a law, or in this case an administrative agency, discriminates against religion, the State must show that it has a compelling reason to do so. As Justice Gorsuch put it in his concurring opinion, the Commission’s “judgmental dismissal of a sincerely held religious belief . . . cannot begin to satisfy strict scrutiny.”
It is hard to image a law targeting a religious practice that would survive such scrutiny. The only statute I’m aware of that might survive this level of judicial scrutiny is Kentucky’s law against handling “any kind of reptile in connection with any religious service or gathering.” The statute is aimed at prohibiting the rare religious practice (primarily confined to Appalachia) of handling venomous snakes in church .
There is little question that Phillips properly won on these grounds, as evidenced by the fact that Court’s four conservatives (Roberts, Thomas, Alito, and Gorsuch) were joined by Justices Breyer, Kagan, and Kennedy. Only Justices Ginsburg and Sotomayor dissented.
It is usually prudent for the Supreme Court to decide cases on the narrowest possible grounds, but given the virtually identical cases that are currently being litigated a broader ruling would have been helpful. Advocates for religious liberty would have liked to have seen the Court overturn Employment Division v. Smith and return to its early requirement that laws impinging upon religious liberty must be subjected to strict scrutiny. Any fair-minded application of this test would result in a victory for Phillips and similarly situated business owners.
Alternatively, and more realistically, the Court should have ruled that States cannot compel creative professionals to communicate ideas with which they disagree. Justices Thomas and Gorsuch, in their concurring opinion, made it clear that they thought the case should be decided on these grounds.
I suspect few people reading this essay believe that men and women should be discriminated against because of their sexual orientation. It is, nevertheless, reasonable to question whether governments should be in the business of punishing religious objectors. The abusive actions of Kafkaesque administrative agencies like BOLI and the CCRC suggest that the free market provides a better remedy. One rarely hears of these cases arising in the 28 states that do not have laws banning discrimination on the basis of sexual orientation, and even in these states businesses that merely state that they would not participate in a same-sex ceremony have been forced to close their doors, due at least in part to negative publicity. Acceptance of LGBTQ citizens is at an all-time high (and is growing every day), and virtually all businesses want to attract, not repel, customers.
If states are going to remain in the business of policing these matters, they should remove them from the jurisdiction of bureaucratic administrative agencies and utilize real prosecutors and courts instead. As well, they should craft narrow accommodations to their civil rights laws to make it clear that creative professionals cannot be compelled to communicate messages to which they object. Such accommodations would burden few citizens, and it would protect the ability of artists to run their businesses according to their consciences.
Masterpiece Cakeshop is but a temporary victory for Jack Phillips. He is now free to run his business according to his religious convictions—until another couple files a complaint against him. Given this recent opinion, it is not clear that he would prevail once more, especially since one would expect the CCRC commissioners to be far more careful in their next review to hide their anti-religious bias. If individual liberty is to prevail, the Court cannot continue to rule on technicalities. It must address the more substantive issues at stake.
 Herb Grey to Mark David Hall, email, June 4, 2018.
 Of course, some instances of discrimination may not come to light precisely because they are not illegal. But one suspects that the media and activist groups would publicize widely such cases.