By Robert L. Mues   |   June 9th, 2018

PUBLISHERS NOTE: I want to thank Ashlyn Gallant, a third year law student at the University of Dayton School of Law, who researched and wrote this same-sex alert blog article. She is externing with us for the summer. Well done Ashlyn!

Supreme Court Rules In Favor Of Baker In Same-Sex Religious Freedom Case

same-sex baker supreme courtIt seems as though it was just yesterday that the news came out stating that a baker in Colorado refused to bake a cake for a same-sex couple’s wedding due to his religious beliefs against same-sex marriage. Outrage broke out on both sides of the spectrum. LGBT+ activists took to their platforms and religious freedom was put to the test. As of June 4, 2018, the case has been decided, but not for the reasons one would think.

The Supreme Court released their decision and as a result, some are in complete disbelief. The Court’s narrow holding allowed the Baker to walk away vindicated after six long years of turmoil. However, the true issue is one that will still remain undecided because while the Court decided the case for the Baker, they didn’t decide it in his favor because they agreed that his religious freedom trumped a same-sex couple’s right to be treated equally. They ruled in his favor because of the way the Colorado Civil Rights Commission (“Commission”) treated him.

When the baker refused to make a cake for the same-sex couple, the couple filed an action with the Commission alleging discrimination on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act. The Commission said that the bakery’s actions violated the Act and ruled in favor of the couple and ordered the baker to “cease and desist from discriminating against same-sex couples.” The Colorado State Court affirmed the order.

Supreme Court Rules In Baker’s Favor Citing Clear Hostility

The question for the Supreme Court then became whether the Commission’s order violated the Constitution. The Court was troubled with trying to reconcile the rights of same-sex couples and everyone’s rights to exercise fundamental freedoms granted to us under the First Amendment. However, it seems as though those two concepts didn’t really come into the picture because of how the Commission treated the baker. While he was in front of the Commission, the baker was entitled to the neutral and respectful consideration of his claims in all the circumstances of his case. The Commission failed to do so and treated him with such clear and impermissible hostility that the Supreme Court ruled in the baker’s favor.

The hostility shown by the Commission is almost cringe-worthy. “Religious beliefs cannot legitimately be carried into the public sphere,” and “He can believe what he wants to believe but cannot act on his religious beliefs if he decides to do business in the state,” are just some of the things that were said at this public hearing. One member even went as far as describing the Christian faith as the most despicable pieces of rhetoric that anyone can use. However, the worst was when one member reiterated his feelings by saying, “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… we can list hundreds of situations where freedom of religion has been used to justify discrimination.”

This hostility is what lead the Supreme Court to rule in the baker’s favor. The Commission is charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law – a law that protects discrimination on the basis of religion and sexual orientation. The failure to apply their law in a neutral and fair way leaves the same-sex couple at a loss for words.

More Questions For Same-Sex Couples After Supreme Court Ruling

However, while seven of the nine Justices ruled in favor of the baker, Justices Ginsburg and Sotomayor dissented. They disagreed with the majority and was sympathetic to the couple. In her dissent, Justice Ginsburg wrote that one or two comments made by the members of the Commission should not be enough to reverse the decision made by the state court.

So where does that leave us? Do bakeries get to discriminate based on their religious beliefs? Are same-sex couples left with no recourse for being discriminated against? At this point in time, the Court has only made this narrow holding and has left each case to be decided on a case-by-case basis.

Click here to read the decision of the US Supreme Court.

Here are some links to past articles that we have posted on LGBT and same sex marriage issues:

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Robert L. MuesAbout The Author: Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog. Mr. Mues has also been a dog owner for 55+ years, and just recently, he and his wife are the owners of "Ralph", a rescued mixed Wire Hair and Jack Russell Terrier.

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