Supreme Court: Colorado Baker Denied Fair Decision-Making

On June 4, 2018, the U.S. Supreme Court issued its long-awaited opinion in the matter of Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018). The Court held 7-2 in favor of the owner of Masterpiece Cakeshop in his refusal to prepare a cake for a same-sex wedding. Though the case did not implicate employment discrimination laws, it arose from the decision-making of the Colorado Civil Rights Division and Commission, which enforce employment, housing, and public accommodation discrimination laws for the State of Colorado.

The facts of the case are well-known and undisputed. In 2012, two men asked the proprietor of Masterpiece Cakeshop, a Colorado business, to create a wedding cake for their same-sex marriage. At the time, same-sex marriage was not legal in Colorado, as the Supreme Court had not yet issued its decision in Obergefell v. Hodges (2015). The proprietor refused to make the cake, citing religious objections, but informed the couple that he would still sell them any other product that did not relate to their same-sex marriage, including birthday cakes. The couple filed a complaint with the Colorado Civil Rights Division.

The Division found that Masterpiece Cakeshop violated the law by denying equal access to services on the basis of sexual orientation. In reaching its decision, the Division noted that Masterpiece Cakeshop admittedly rejected other same-sex customers in the past with respect to creation of wedding cakes. The Colorado Anti-Discrimination Act (CADA) was amended in 2007 to include protections against sexual orientation discrimination in its Part 6, which covers places of public accommodations such as Masterpiece Cakeshop.

Thereafter, the Colorado Civil Rights Commission, i.e., the appointed, seven-member executive arm of the Division, slated the case for a public hearing before an Administrative Law Judge (ALJ) of the Office of Administrative Courts (OAC). The ALJ concurred with the Division, i.e., found that a violation of CADA, Part 6, had occurred when Masterpiece Cakeshop refused to make the same-sex wedding cake. Further appeals to state district and appellate courts also resulted in decisions that concurred with the Division, and the Colorado Supreme Court refused to hear the case.

On December 5, 2017, the case was argued before the U.S. Supreme Court. And in today’s decision, that Court reversed the decisions of the Colorado Court of Appeals, Colorado State District Court, the Commission, and the Division. However, in its reversal, the Court did not answer any of the long-standing questions which observers and experts expected. For instance, the Court did not answer whether a proprietor may actually refuse service to certain customers on religious grounds, and how far those religious grounds extend.

Instead, the Court’s decision was based merely upon certain comments in the record of the proceedings before the Colorado Civil Rights Commission. The Commission, in this sequence of events, interacted with the case insofar as it was the Commission that was tasked with deciding whether the case should be heard before an ALJ. Interestingly, though the Commission’s comments ultimately proved fatal to the case, the Commission did not investigate or issue the initial Letter of Determination, nor was it involved in an appellate capacity.

During those proceedings, a Commissioner made comments about Masterpiece Cakeshop’s proprietor’s religious convictions, equating said proprietor’s rationale for refusing to serve the same-sex couple to the sentiments that led to “the Holocaust” and “slavery.” In conjunction with other comments, the Court found that the record clarified that the Commission decided the Masterpiece Cakeshop case with a “hostility towards religion,” thus depriving Masterpiece Cakeshop of a fair hearing. The Court also found notable that none of the other Commissioners objected to these statements, nor were they otherwise resolved during proceedings before the ALJ, or state district or appellate courts.

The Court’s decision, though newsworthy, continues to leave open questions about whether religious beliefs may trump protections (such as those against sexual orientation discrimination), especially in the public accommodations context. Businesses will continue to question whether they are free to reject certain customers based on their proprietors’ sincerely held beliefs, and customers will continue to question whether their exclusion from a business is on legal grounds when the cited reason is religious in nature.