BLJ – Ruling in Colorado bakery case prompts look at bigger picture

June 22, 2018

The Supreme Court ruled in favor of a Colorado baker last week, handing down a 7-2 decision. The ruling, however, was a narrow victory for those in favor of the baker, as it was dependent on the specific facts of the case. The wide precedent expected in the case was not realized.

In the case, Masterpiece Cakeshop owner Jack Phillips, who cited his beliefs as a Christian, refused to bake a wedding cake for a same-sex couple in Colorado. At the time, same-sex marriage was legal in Colorado but the Supreme Court had yet to weigh in nationally.

“The ruling is really limited, it’s very narrow,” said Mickey Osterreicher, a First Amendment expert, counsel for the National Press Photographers Association and a former photojournalist based in Buffalo. “It really deals with this case based on the fact patterns of this case. If you were to change any of those fact patterns, you may end up with a different result. It’s not like it’s a huge constitutional decision that really came out of this.”

In making the ruling, the court based it on an argument that the Colorado Civil Rights Commission was hostile to religion. The argument was based on comments one of its members made.

The commission originally ruled against Phillips. However, Justice Anthony Kennedy, who wrote the majority opinion, acknowledged gay rights.

“The outcome of cases like this in other circumstances must await further elaboration in the courts,” he wrote, “all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Phillips’ attorney is Kristen Waggoner, senior counsel at Alliance Defending Freedom. She said the baker was “relieved” by the decision.

“Jack serves all customers; he simply declines to express messages or celebrate events that violate his deeply held beliefs,” she said in a statement. “Creative professionals who serve all people should be free to create art consistent with their convictions without the threat of government punishment.”

Osterreicher said the 7-2 decision was a surprise and many had expected a 5-4 split. Even though Justices Stephen Breyer and Elena Kagan concurred with the decision, they “suggested” that there was no valid free expression claim made in the case.

“That would go along with Ginsburg and Sotomayor’s dissent,” Osterreicher said. “In that sense, it really is the 5-4 decision that everyone was expecting.”

The case was interesting because the Colorado Supreme Court refused to take it, he added.

“It was almost like, ‘OK, we want to address something,’ ” Osterreicher said, referring to the Supreme Court.

It’s difficult to predict how many cases the court will hear around similar issues, he said, but they will be based on different fact patterns.

“The question is, will the fact patterns align for them to analogize to them or to distinguish them?” That’s what the courts do all the time,” he said. “When somebody cites something for a proposition, and they’ll say, ‘Is that analogous to this case or not?’ ”

Most people don’t think of baking a cake as an “expressive activity,” Osterreicher said, which the court determined was the case.

“Without having the ability to do that, you don’t have free speech,” he said.

The majority decision “hung its hat” on the hostility from civil rights commission towards Phillips’ religious beliefs, said Matthew Pelkey, a partner at Colligan Law LLP who practices complex civil litigation.

“To be clear, there was no determination made that the Colorado law was unconstitutional, only that the application of it was essentially procedurally deficient given the perceived hostility – which was a violation of Phillips’ constitutional rights,” he said. “This is especially so when compared to how other comparable matters have been handled by Colorado.”

Pelkey reiterated that the decision was narrow and nuanced.

“The majority made a point of repeatedly emphasizing the difficulty in balancing the exercise of religious beliefs through artistic abilities and the protection of civil rights of gay and lesbian couples and that a situation where there was a total refusal to sell any products by a vendor would likely not result in the same outcome as this case,” he said. “The precedential value of this case is likely to be very limited. I also suspect that absent the perceived hostility, you may not have had the same result here. The underlying issues here are far from resolved.”

The original article can be found on the Buffalo Law Journal website: