Kennedy, and his colleagues, focused on the process, specifically the hearing by the Colorado Civil Rights Commission. Taking a page from Immanuel Kant, Justice Kennedy was deeply troubled by what he claimed was denigration by the commission of Phillips’s religious beliefs. Citing comments by one commissioner regarding use of religion to support repugnant conduct, Kennedy believed such comments evinced a bias against Phillips. According to Justice Kennedy, Phillips's religious beliefs were not accorded the dignity and respect required by the First Amendment; rather, the commission was neither objective nor neutral in approaching this case.
Indeed, even if the commissioner’s comment was offensive, it does not translate into an offence against constitutional imperatives of neutrality. Was the statement inartful? Perhaps. Yet, it doesn’t approximate a denial of “the requisite religious neutrality that must be strictly observed,” in cases where the Free Exercise Clause (e.g. religion) is invoked. Instead of weighing the factors “relevant to the assessment of governmental neutrality,” the court focused on two comments made by one commissioner, who stated, “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.”
Yet, what the court seems to ignore or at the very least disregard are the facts before the commission. An investigation revealed that Phillips refused to bake wedding cakes only for gay couples. Not unlike Charlie Craig and his fiancé, David Mullins, six gay couples were denied services by Phillips based on a religious belief that the bible excoriates homosexuality. Phillips would bake a wedding cake for any heterosexual couple planning a wedding. There would be no inquiry or assumption about heterosexual intimate association. Phillips reserved this position for couples who love within their gender. Consequently, Phillips’s conduct was exactly the type of conduct prohibited by the Colorado Anti-Discrimination Law as well as the Public Accommodation Law of the 1960s and the Civil Rights Amendments of 1964.
Ken wants me to serve pork, which any good New Yorker knows is verboten under strict kashrut laws. To make matters worse, he wants the pig served with milk. Kosher catering houses cannot mix milk with meat under any condition whatsoever.
Consonant with my sincerely held religious beliefs, I need to inform Ken and Barbie that cooking for their wedding is a not an option, or as my mother would say, ”Not a chance.” Yet, my refusal to serve Ken and Barbie is not a violation of anti-discrimination laws.
Why is my conduct acceptable under the anti-discrimination law, but Phillips’s refusal to bake a wedding cake for a gay couple is not? Because Phillips is withholding service from a discrete group of people who are specifically covered under the anti-discrimination laws. On the other hand, I will not serve pork or meat with milk to anyone. Consequently, my religious beliefs and subsequent conduct are not directed at a specific group, rather they inform my decision whether to take a catering job, equally applicable to all potential clients. Phillips's conduct is what is at issue, not his beliefs; conduct which is at once selective and discriminatory.
Justice Kennedy takes some license with the commissioner’s statement. The commissioner was speaking facts, not beliefs. Religion has been used to enslave, to colonize and to kill. In the name of religion, the Holy See engaged in genocide against Jews during the Spanish Inquisition. Fundamentalist Christians have called for the annihilation of gays and lesbians whilst fundamentalist Muslims and Nigerian Christians have killed gay men with impunity. White supremacist groups use religion as foundational to their cultural and political beliefs to exclude Jews and people of color. In Charlottesville, this was evident when Neo-Nazis chanted, “Jews shall not replace us,” whilst carrying tiki torches purchased from Lowe's. The commissioner was merely noting how religion has, at times, distorted conceptions of life, liberty and equality.
Yet, the Supreme Court was not a stranger to this detail. In Loving v. Virginia, the court noted and then dismissed the trial court explanation for the legitimacy of miscegenation laws. The court below opined:
Why then did Justice Kennedy and six of his colleagues decline to address the merits of the case, specifically the question of religiously based conduct and its impact on the rights of gay and lesbian couples seeking services?
“Almighty God created the races white, black, yellow, [M]alay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.”
Clearly “he” is a reference to G-d. Notwithstanding this prognostication, the Court refused to legitimize the trial court ruling and the State of Virginia’s miscegenation law. The fact that both the court and Virginia relied on alleged religious dictum was not only irrelevant, but inapposite to conceptions of liberty and equality. In Loving, the U.S. Supreme Court refused to place its imprimatur on discrimination even if such discrimination was grounded in sincerely held religious beliefs.
Why then did Justice Kennedy and six of his colleagues decline to address the merits of the case, specifically the question of religiously based conduct and its impact on the rights of gay and lesbian couples seeking services? There are two reasons. First, I believe that the court did not want to address the issue based on these facts. Second, Colorado gave them an out. The facts of this case were problematic due to statements by the commissioner. The statement about religion provided the appearance of bias. The court then applied this to the entire commission, which in turn tainted its ruling. In concluding that the commission qua commission was neither neutral nor objective, Kennedy relied upon the words uttered by one man and the silence of the remaining commissioners. Silence was construed as consent, thus the Commission failed to adhere to the standard required by the Free Exercise Clause.
While I agree with the court that the errant commissioner was out of line, I cannot conclude that the commission relied solely upon this man’s opinion. Remember what was before the body-the fact that only gay couples were denied services by Masterpiece Cakeshop. Additionally, it was this fact that was foundational to the administration law judge’s ruling. Discriminatory conduct predicated upon religious belief, sincere as that belief may have been, did not support a finding that religious liberty claims trump equality as that equality is applied to gay men and lesbians.
The Court dodged a bullet this go around. There will be another case which shall present the same issue. Hopefully, the next Human Rights Commission will not provide an excuse for the court to do an end run around conceptions of equality. A girl can dream.
Kris McDaniel-Miccio was a professor of Law at the Sturm College of Law. She is an attorney, rabbi and now the
founding director of Equality Research Associates Ltd., with offices in New York and Dublin, Ireland. McDaniel-
Miccio resides in New York having left DU because of sex discrimination engaged in by the university against women full professors. McDaniel-Miccio was one of eight plaintiff intervenors in a successful federal case brought by the EEOC. Due to the law suit, DU is currently under the jurisdiction of the EEOC until 2024.