(This is a guest post by Aakanksha Saxena.)
The jurisdiction of the United States Supreme Court [“SCOTUS”] is, unlike the Indian Supreme Court, extremely narrow. The Court grants certiorari in fewer than a hundred cases each term, giving nod to the several steps of constitutional adjudication that matters go through before reaching the Court. But in the area of same-sex couples and their legal rights, the Apex Court jurisprudence has been pioneering. The Supreme Court has been the first of the three federal wings of constitutional government to legalise consenting sexual intercourse, and a few years later, marriage, between two adults of the same gender. As a result, the case of a baker refusing to bake a wedding cake for a same-sex couple’s wedding gathered steam and appeared to set the stage for a further step in the direction of recognition of the rights of homosexual individuals and couples. Through this post, I shall attempt to unravel the judgement that SCOTUS finally rendered, addressing not the issue of homosexual rights under public anti-discrimination legislation, not the right to free exercise of religion – addressing really nothing at all.
Pared down, the facts of the case are this: a gay couple visited a renowned, “designer” bakery in Colorado [at a time when gay marriage was still unrecognised in the state] with the intention of procuring a unique and momentous cake for their upcoming nuptials. The owner of the bakery refused to design them a wedding cake, citing his faith as ground for refusing to make a statement in support of gay marriage; he directed the couple to other products he had ready for sale in his shop. The couple sought legal redress under the Colorado Anti-Discrimination Act [hereinafter, “CADA”], which prohibited inter alia sexual orientation-based discrimination in public places and were successful before the State authorities. The relevant provision that the bakers relied on is as under:
It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of … sexual orientation … the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation…
The case’s trajectory through the State judiciary gave it traction, and by the time it reached its ultimate pitstop, it was being touted as the most significant matter SCOTUS would hear this past term. Fittingly, a reading of the transcript of the SCOTUS oral arguments [duly sensationally reported in polarised media sources] reveals the Bench and the attorneys raising and debating several different aspects of the case, as well as jurisprudence on compelled speech. Several members of the Bench seemed to be performing a confused choreography around the issues, in order to appropriately articulate the questions they would approach.
At the Apex Court, from the exchange between the Justices, the attorney for the Petitioner-baker Jack Phillips, and the Solicitor General for the United States Department of Justice in support of the baker, there emerged three broad axes that the case seemed to turn upon several inter-linked questions: what comprises speech, and to that end, how much does it depend on who creates it? How would the case be different if the marriage being objected to was interracial, interreligious, or something else the baker found objectionable – or more simply, who can be refused service, and on what grounds? Lastly, does the nature of the message matter while refusing service?
Tying up these aspects with the First Amendment brought the conflict in the case down to the rights of the baker to free exercise of his religious beliefs and expression, which consequently protected him from being compelled to make speech, versus the rights of the gay couple Charlie Craig and David Mullins to service under public accommodation law, as recognised through years of evolution of hard-fought cases, which cases have now established jurisprudence and state legislations recognising the rights of same-sex couples to be wedded.
When the judgement was delivered, it contained a surprising, not-so-slim 7:2 verdict in favour of the Petitioner baker. Both prongs of the judgment were a surprise, considering SCOTUS follows a 5:4 voting trend on rights-based issues stemming from social equality [as I shall elaborate further shortly]; even more surprise arose from the Court’s decision to side with the baker and rule that his refusal to serve a homosexual couple was well within his constitutional rights. Peeling away the layers of the transcript and the five different opinions in the judgement, the surprise fades away and transmutes into confusion. Where is the decision on whether a cake, or other forms of artistic expression constitute speech [which issue was raised as a constitutional claim by the baker right up to his Supreme Court briefs]? Has this judgment helped furthering the legal cause of same-sex couples? What is the reason for the silence on how the Hurley case – which held that public anti-discrimination laws regulate conduct and not speech – is to be applied? Does the Court’s ruling in this case govern the baker’s cake i.e. his avowed “speech”, or the act of his refusal to make one? The answer to this last question would necessarily form precedent for further kinds of “speech” that could not be compelled.
Justice Kennedy (the Court’s perceived “swing vote”) writing for the majority (joined by Chief Justice Roberts, and Justices Breyer, Alito, Kagan, and Gorsuch) brought the focus on the standard of neutrality that the Colorado Commission, as the first branch of state adjudication ought to have afforded the Baker in its hearing, but didn’t. He therefore concluded that the Commission violated the Free Exercise Clause of the First Amendment. The opinion takes issue with the comments and questions posed by the Commissioners in their hearing of the case, deciding that the Commissioners brought prejudice and hostility against the Baker’s beliefs to the Bench, such that the Commission failed to meet the standard of neutrality that the State must afford in adjudication. In fact, Justice Kennedy even recognised that the Commissioners’ statements were ambiguous such that they could lend to two very starkly different interpretations – one of which was that “they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views.” I believe that this view is not only legally innocuous but also factually accurate. The majority has however taken the other view, holding that the Commissioners’ comments “might be seen as inappropriate and dismissive comments” and thus did not afford the Petitioner the due consideration for his free exercise rights.
The Court posed the question of the level and nature of the Commissioners’ bias to the attorney for the State of Colorado who, in his personal capacity, disavowed the statements while maintaining, for legal argument, that the level of bias was not such that permeated the entire judicial process so as to target the baker for his faith. The subordinate courts’ treatment of Phillips’ constitutional claims went unanswered, and the Court instead concluded on threadbare discussion and analysis that the Commission’s conduct in its treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.
The majority also failed to address Justice Ginsburg in dissent [Sotomayor joining], setting out the different levels of adjudication that the case went through, particularly the de novo review by the Colorado Court of Appeals, which served to negate the alleged “hostility” of one or two Commissioners at one of these levels. Justice Ginsburg also accurately pointed out the majority’s heavy yet misplaced reliance on one SCOTUS precedent on this point, Church of Lukumi Babalu Aye, Inc. v. Hialeah, which concerned governmental prejudice in only one decision-making, legislative body, a distinction that also went untreated by the majority. All opinions skimmed the standard of neutrality that a State or its agencies must afford when regulating or adjudicating, providing no analysis on the requirements that the Commission had to satisfy. Choosing to sidestep the issue of how a state anti-discrimination statute must harmoniously co-exist with First Amendment rights, the majority limited itself to the actual judicial application of the state statute in this case.
The Court also distinguished this treatment from the precedential manner in which the Commission decided what a fractured part of the majority deigned an analogous set of Colorado cases involving another Jack. Mr. William Jack requested three bakeries to bake cakes containing specific messages decrying homosexual persons based on biblical verses. He was refused at all 3, and the Colorado Commission ruled in favour of such refusal. The SCOTUS majority treated this as a buttress to its conclusion that the Commission was especially hostile to Phillips’ religion, and it did not address how the issues of speech and expression, or anti-discrimination were tackled by the Commission in either. Justice Kagan’s concurrence [joined by Justice Breyer] correctly distinguishes the treatment by the Commission in both cases – in refusing William Jack, the bakers treated him just as they would any other paying customer with the same order; in refusing Craig and Mullins, Phillips discriminated against them by refusing to provide what he ordinarily provide [a wedding cake] to other [heterosexual] couples.
This in essence is what the court was supposed to decide, as distilled by Justice Ginsburg – the Baker provided a service to heterosexual couples, that he refused to provide to the homosexual couple in this case, i.e. designing and baking a cake celebrating the wedding of Mullins and Craig; the Bench had to determine whether this refusal was constitutional. It is trite to say that the dissenters chose to uphold the decision of the Colorado Court of Appeals, but they too limited themselves to deciding this on the same basis as the majority, that is, finding that the level of alleged hostility displayed by the Commissioners did not amount to a violation of the Free Exercise clause.
On the merits of the issues raised by all parties in the case, the Justices’ opinions revealed loose threads that certainly ought to raise red flags for LGBTQ and other minority groups’ advocates, and indicate how a future case may be decided. Justice Gorsuch [concurring with the majority and joined by Justice Alito] seemed concerned about where SCOTUS must draw a line – if at all – in identifying which minorities were to be protected and what kinds of messages could be deemed expressive. To that end, perhaps his vote would, on the merits as well, go to the baker. Gorsuch, J., applying the tenets of secularism of state action found that there could be no difference of adjudication between the protection and the treatment to be afforded the avowed “secular” baker who refused to bake homophobic slurs into cakes, and Jack Phillips. Focusing therefore, on the message being “compelled”, rather than the group being protected, this opinion weighed heavier on the side of free religious exercise, as opposed to expansion of homosexual rights. Therefore, in the event a hypothetically 100% neutral commission was faced with the same facts on record, the refusal by the baker to deliver a “compelled” message that he did not agree with on the grounds of First Amendment Free Exercise, would in his eyes be considered constitutional. Gorsuch, J.’s views are cemented by his joining Justice Thomas’ partial concurrence. Justice Thomas took the baker’s case even further, by relying on precedents which had protected anti-gay sentiment under Free Speech claims. In his opinion, he therefore avoided dealing with the impact of the subsequent precedent categorically recognising gay marriage, and which required application in this case. In fact, the application of those precedents becomes unique in the context of Free Exercise which, arguably, is more at loggerheads with gay rights, than the Free Speech clause.
This line of reasoning is also at direct odds with Justice Kagan’s concurrence that sought firmly to distinguish between service providers that refuse to create “offensive” messages versus those that make identity-based refusals. These polar opposing opinions tied themselves to the majority decision only on the issue of the Commission’s treatment being an invalid exercise of State power. The two votes of Justices Kagan and Breyer would otherwise, as was considered foregone prior to the delivery of the opinion, have fallen neatly on the side of the homosexual couple. The conflict between the opinions authored by Justices Kagan and Gorsuch therefore presents the central, critical constitutional question that the Court deftly sidestepped.
Justice Kennedy’s opinion on behalf of the majority carved out the protection for religious exercise, leaving wide open the question of the give-and-take between the Free Exercise clause and a valid exercise of state power in enacting generally applicable anti-discrimination laws. Kennedy, J. highlighted the widespread concern that an exception granted to members of the clergy in choosing whether to perform gay marriage was liable to create a slippery slope fallacy for other kinds of religiously neutral service providers in the context of the wedding industry. Considering that SCOTUS judgements are traditionally devoid of any self-enforcing mechanism, it is reasonable to worry that the nature of this verdict may do even further damage to the tolerance that previous compositions of the Court was trying to propagate.
The State’s responsibility to afford secular treatment of all cases brought to its courts and tribunals is no small feature of United States democracy, and by no means must be blindsided – but was this the case to raise it, and was this the reason to side with Jack Phillips? Is it presumptuous to conclude that the current political climate in USA reined SCOTUS in, such that it chose explicitly to defer the contentious issues that were patently framed throughout the movement of this case through judicial mechanisms? Whatever being the Court’s motives, it remains to be seen what kind of lower court adjudication will ever reach the artificial standard of State neutrality that SCOTUS has banked on here, to enable a more comprehensive, nuanced decision that these exceptional and pressing issues certainly demand.
(The author practices at the High Court of Bombay.)