Masterpiece Cakeshop Ruling Bad but Could Have Been Worse, Attorney Says

After the U.S. Supreme Court sided with Masterpiece Cakeshop owner Jack Phillips, who had argued that his refusal to make a wedding cake for a gay couple, Charlie Craig and David Mullins, back in 2012 was based on sincerely held religious beliefs, a wide variety of advocacy groups and political figures shared their opinions on the ruling, pro and con. (A sampling of their views is below.)

Among the most interesting takes is that of a direct participant: attorney Paula Greisen, who represented Craig and Mullins in concert with the ACLU of Colorado.

Greisen, who's also an advocate for Lindsay Saunders-Velez, a nineteen-year-old transgender inmate who has been sexually assaulted twice in a span of months, is no fan of the 7-2 decision in Phillips's favor, and says she fears negative repercussions. But she also sees positives in some of the language used by Justice Anthony Kennedy, author of the majority opinion (accessible below), as well as the lack of sweeping pronouncements that might have turned back the clock on LGBTQ rights.

"It's certainly disappointing from the perspective that Charlie and David did not prevail," Greisen acknowledges. "But it's a narrow, limited opinion just on the facts of the case. It was largely based on statements made by some members of the Colorado Civil Rights Commission," which threw its support behind Craig and Mullins in 2014, "and not on any inappropriate conduct by Charlie and David."

Indeed, Kennedy argued that the Colorado Civil Rights Commission had fallen short when it came to "the State’s obligation of religious neutrality" in considering Phillips's actions. The majority opinion cites this comment from an unnamed member of that commission: "I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be — I mean, we — we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”

At the same time, Greisen notes that "the opinion did make several encouraging statements. The court clearly reiterated that the LGBTQ community cannot be treated as social outcasts or second-class citizens in any way and recognized that a state could certainly protect that community's right to receive the same services and goods as anyone else — and those are very important statements. I think that while the question of whether or not any type of creative service could be denied to protected people based on religious freedom is still open, the case is a win in the sense that it recognizes that the community has to be treated on the same level as other citizens."

The justices on the majority side seemed to go out of their way to tailor their decision for Phillips specifically, as opposed to establishing that making wedding cakes qualifies as a form of speech, as Alliance Defending Freedom, Phillips's legal team, maintained. Given that, Greisen notes, "I think the overall precedential effect is very limited."

In some ways, "it's unfortunate that the court did not take this opportunity to set precedent and answer the questions about what happens when religious expression conflicts with protection provided to certain groups of people," she continues. "But I think the court found itself in a very tricky situation and decided not to answer the constitutional question at issue — which is often what the court decides to do."

Adds Greisen: "When the court can sidestep a constitutional issue and decide a case on facts, it often chooses to do that. But the difficulty is that we're living in a very changing, volatile political climate. These issues are extremely divisive, and although I'm disappointed the court didn't meet the issues straight on, I don't think what happened is incredibly unusual."

Nonetheless, she stresses, "I think the statements by the commissioners did not in any way affect the outcome in the Colorado courts — so I'm disappointed that the court used these rather random statements to invalidate the findings of discrimination in this case."

In their post-decision comments, representatives from Alliance Defending Freedom, a conservative Christian organization, suggested that the finding is broader than Greisen believes it is. Take this statement from ADF senior counsel Kristen Waggoner: "Creative professionals who serve all people should be free to create art consistent with their convictions without the threat of government punishment. Government hostility toward people of faith has no place in our society, yet the state of Colorado was openly antagonistic toward Jack’s religious beliefs about marriage. The court was right to condemn that. Tolerance and respect for good-faith differences of opinion are essential in a society like ours. This decision makes clear that the government must respect Jack’s beliefs about marriage."

Such remarks hint that the decision will embolden groups like ADF to try to expand the parameters of the decision through future complaints. But Greisen says she strongly disagrees "that the opinion gives carte blanche to any business to discriminate against the LGBTQ community or based on race or gender or other people's religions. The court said we need as a society to be more tolerant and understanding, and I would suggest that this level of tolerance and understanding needs to go both ways. I think that's the message the court sent. They sensed hostility in this case, right or wrong, and they didn't want to hand down an opinion that had any taint of what they perceived as hostility. I don't think the court in any way allowed gay people to be discriminated against. I think it simply reaffirmed the right of religion not to be discriminated against."

Regarding the bigger picture, Greisen offers a warning, and a reminder.

"I think there has been a feeling in our country that equality has been achieved — that we have evolved to that point because we had a minority president and because we had a female candidate for president," she says. "But I think this is a lesson that we still have a long way to go, and that progress often is not made in one giant step. It has to be fought for, and we have to continue the fight for these rights. Charlie and David have always known this is just the beginning. So I hope the opinion encourages members of the LGBTQ community, as well as all of us who believe in equal protection, to have strong and persistent voices to fight against inequity. Because the fight isn't over, and these things don't come easily."

Click to read the U.S. Supreme Court's Masterpiece Cakeshop v. Colorado Civil Rights Commission ruling. Continue reading for a variety of statements from prominent individuals and groups about the decision.
Colorado Governor John Hickenlooper:

"It’s against Colorado law to deny goods and services to any individual because of sexual orientation. Nothing in the narrow opinion released today by the United States Supreme Court changes that, or prevents the state from protecting LGBTQ persons from discrimination.

"While we are disappointed with the decision, we take seriously the Court’s admonition that the state must apply its laws and regulations in a manner that is neutral toward religion. We have no doubt that the Colorado Civil Rights Commission will meet that standard as they listen, respectfully, to all sides of the matters that come before it and issue decisions that uphold the protections afforded under Colorado law."

Colorado Civil Rights Division:

The Colorado Civil Rights Division respects the ruling of the Supreme Court of the United States.

The decision does not alter the Colorado Anti-Discrimination Act or its protections.

The court has sent a message regarding members of decision-making bodies, such as the Colorado Civil Rights Commission, requiring that its deliberations remain objective and consistent so that both parties are guaranteed those considerations and are applied in a consistent manner.

The Colorado Civil Rights Division is the administrative division under the Colorado Department of Regulatory Agencies that receives and investigates charges of discrimination.

Along with this guidance issued by the United States Supreme Court, the Colorado Civil Rights Division will continue reviewing charges of discrimination as it pertains to the Colorado Anti-Discrimination Act.

Colorado State Senator Bob Gardner:

"Today, the United States Supreme Court found that our State's Civil Rights Commission acted with hostility toward a citizen's free exercise of religion. In fact, the Court noted the unchallenged hostility toward religion by this group appointed by our Governor. The Court found that the very body charged with protecting the rights of our citizens acted with hostility toward those rights in the Masterpiece Cakeshop case.

"During the legislative session, I struggled to restore balance to the Civil Rights Commission and ensure that it would not be captured by a viewpoint that favors one set of protected rights over another. This is the very reason I worked last session to restore balance and accountability to the Civil Rights Commission. While some believed the legislation achieved that, I did not and voted against the reauthorization of an unaccountable commission.

"The Court's ruling today confirms that my concerns were legitimate and the need for balance on the Commission absolutely essential for our citizens. The Governor we elect this year will make at least three appointments to the Commission early next year. That is why it is critical that we elect a Governor committed to protecting all of our civil rights, including the right to religious freedom."

Anti-Defamation League CEO and National Director Jonathan Greenblatt:

"We are disappointed by today’s ruling against the Colorado Civil Rights Commission. Fortunately, the decision was narrow, focusing on the Commission’s religious partiality in rendering its decision against the baker.

"Let’s be clear, the Supreme Court decision does not give businesses the constitutional right to discriminate, and it does not change existing state anti-discrimination protections. The Court reiterated the importance of the rights and dignity of LGBT individuals to be free from discrimination. And it recognized that religious exemptions to anti-discrimination laws for businesses must be limited and confined.

"ADL will keep working with our partners to advocate for the passage of the Equality Act, which would prohibit discrimination against LGBT individuals across the country. No one should be fired from a job, denied a place to live, or turned away from a business simply because of who they are or who they love."

Colorado State Senator Kevin Grantham:

"This ruling stands as a clear and humbling rebuke to all those, inside and outside the Statehouse, who took the position this last session that the Colorado Civil Rights Commission can do no wrong, and that it always acts within appropriate legal and constitutional boundaries. It clearly does not. Not only does this ruling demonstrate why Senate Republicans made the effort we did to reform the Colorado Civil Rights Commission, but I think this opens the door to follow-up reforms now that we all have a better understanding of where cases of overreach and abuse can occur.

"We hate to say we told you so...but we told you so. We pushed for modest but necessary reforms and restraints, which were designed to rein-in the potential for such abuses, but Democrats refused to budge on much of what we proposed, and even now seek to diminish the significance of this ruling. This shows precisely why the Civil Rights Commission needed to be depoliticized, de-radicalized and returned to its original mission — to protect the civil liberties of all Coloradans, not just a select few.

"The refusal of many Democrats and special interests to see the need for any but the most innocuous reforms offers troubling proof that they care more about politicizing the commission than seeing it follow constitutional principle. We hope they will do some serious soul-searching in the wake of this ruling. But I will not hold my breath."

Colorado Attorney General Cynthia Coffman:

"Today the Supreme Court determined that the Colorado Civil Rights Commission was neither tolerant nor respectful of Mr. Phillips’s sincerely held religious beliefs in this particular case. Based on the statements of some Commissioners, the Court found that the proceedings did not honor the State’s solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination laws.

"At the same time, the opinion is narrow. The Court made its decision based on a specific set of facts and left open many legal questions. Unfortunately, those questions will have to be decided in future litigation.

"The Court did make clear, however, that States like Colorado may continue to protect the LGBTQ community, reaffirming principles my office has consistently defended for the past six years. The general rule was, and remains, that the First Amendment does not allow business owners to deny members of the community equal access to goods and services. As the Court said, the right of gay people and couples to 'exercise ... their freedom on terms equal to others must be given great weight and respect.' The Court’s decision did nothing to undermine protections the Colorado General Assembly granted to the LGBTQ community under our Anti-Discrimination Act."

U.S. Representative Jared Polis:

"This is a disheartening ruling for the LGBTQ community and a sad reminder that we have a long way to go in building a nation where everyone is free from discrimination, regardless of who they are or who they love.

“Here in Colorado, equality is a fundamental value. We take great pride in having some of the strongest, most forward-thinking non-discrimination laws in the country. To be clear, nothing in this ruling gives opponents of equality justification to try to undo those laws or dismantle the vital Colorado Civil Rights Commission. As Coloradans, we will stand strong against any attacks on our fundamental rights.”

Laura E. Durso, vice president of the LGBT Research and Communications Project at the Center for American Progress:

"This decision recognizes the long-standing principle that businesses open to the public need to serve the public on equal terms. Despite narrowly ruling for the baker on the limited facts of this case, the court highlights the importance of enacting protections against discrimination to combat the mistreatment that same-sex couples and LGBTQ people face across all areas of life. Religious freedom is a cherished value that is only strengthened by inclusion of LGBTQ people under civil rights laws. Those of us who stand on the side of justice must work to ensure everyone is safe in their communities and receives their full measure of equality."

U.S. Representative Ed Perlmutter:

"The Masterpiece case was an opportunity for the Supreme Court to set an important anti-discrimination precedent. Unfortunately today’s ruling, though narrowly written, reminds us we can never stop fighting against discrimination in this country and underscores the need for nationwide nondiscrimination protections. I signed the amicus brief in support of Charlie and David because I believe every American is guaranteed freedom from discrimination regardless of their race, color, sexual orientation or gender."

Mayor Annise Parker, President & CEO of LGBTQ Victory Institute:

"Today is a sad day for America and especially for LGBTQ youth who have grown up believing in the inevitable move toward fairness and justice for our community. That path toward justice ebbs and flows, and today the Supreme Court led us away from one of the basic tenants of American idealism — that all are treated equally. While the Supreme Court made a narrow ruling focused exclusively on a state agency’s treatment of a Colorado baker, opponents of equality will use it to try and open the floodgates. Homophobic forces will purposefully over-interpret the ruling and challenge existing non-discrimination laws by refusing service to LGBTQ people in even more situations — denying them dinner at a restaurant, lodging at a hotel, or renting an apartment.

"State and local civil rights enforcement offices are now on the frontlines in protecting LGBTQ people from widespread discrimination, so it is critical we pressure elected leaders to fully fund these agencies and ensure they have the resources to push back on attempts at discrimination. LGBTQ elected officials like Colorado State Rep. Leslie Herod have led efforts to build up state and local enforcement agencies, and now we need all elected officials who support equality to prioritize these offices given today’s ruling. Our representatives must respond."