In Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018 WL 2465172 (June 4, 2018), the U.S. Supreme Court invalidated a Colorado Civil Right Commission decision requiring a bakery to sell a cake in connection with a same-sex couple’s wedding reception, despite the owner’s religious opposition to same-sex marriage.  It held that unconstitutionally anti-religious bias infected the Commission’s decision.  This third and final post regarding the decision addresses the claim that inconsistencies between the Commission’s decision in Craig v. Masterpiece Bakeshop and its treatment of a trio of complaints brought by a religious adherent showed the Commission’s bias.

(For the URL’s to the transcript of the proceedings before the ALJ and the Colorado Civil Rights Commission (herinafter “Tr.”), the appendix submitted by appellants to supplement their petition for certiorari (hereinafter “App.”), and the Joint Appendix submitted with the merits briefing (hereinafter “JA”), see Part II of this series of blogposts.)

In March 2014, three months after an ALJ issued his determination that Masterpiece Bakeshop had discriminated against Charlie Craig and David Mullins, William Jack visited three Denver bakeries, Azucar Bakery, Le Bakery Sensual, and Gateaux, Ltd., with an unusual cake request.  Jack said he wished to order two cakes. E.g., Jack v. Le Bakery Sensual, Charge No. P20140070X, Determination, 2 (March 24, 2015) [JA 242-43; App. 122].  One was to display with the image of an open Bible with two verses: “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:2.”  The second was to have an image of two groomsmen, appearing before a cross, with a red “X” over the image.  It was to be inscribed with two statements: “God loves sinners” and “While we were yet sinners Christ died for us. Romans 5:8.”  E.g., id.  When he was refused, Jack filed a complaint with the Colorado Civil Rights Division asserting that he had been denied service based on his Christian faith.  Id. at 1 [JA 241; App. 121.]

At the time the Civil Rights Commission decided to affirm the ALJ’s ruling in Craig v. Masterpiece Bakeshop, on May 30, 2014, Jack’s complaints were still in the investigative stage.  The Interim Director of the Civil Rights Division did not make a determination of no probable cause until almost 10 months later.  Jack v. Azucar Bakery, Charge No. P20140069X, Determination (March 24, 2015); Jack v. Le Bakery Sensual, Charge No. P20140070X, Determination (March 24, 2015); Jack v. Gateaux, Ltd., Charge No. P20140071X, Determination (March 24, 2015) [JA 230-258; App. 117-131].  The Commission ultimately affirmed the Interim Director’s determinations of no probable cause.   [App. 132-134.]

The Supreme Court’s conclusion that the Commission had inadequately distinguished Craig v. Masterpiece from William Jack’s three complaints was flawed, and imposes an unrealistic burden of consistency upon agencies.

Inconsistent Decisions

Inconsistent decision-making can be a sign of an illicit motive, Village of Arlington Heights v. Metropolitan Housing Development Corp, 429 U.S. 252, 267 (1977).  There the Court noted that departures from normal substantive standards may be indicative of illicit motivation, “particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.”  Id.; accord, U.S. v. City of Yonkers, 96 F.3d 600, 612 (2d. Cir. 1996); U.S. v. Board of School Commissioners, 637 F.2d 1101, 1105-06 (7th Cir. 1980).

And even apart from the existence of any illicit motive, an agency has an obligation to explain departures from prior decisions.  2 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE §11.5, at 817-820 (4th ed. 2002); 2 CHARLES H. KOCH & RICHARD MURPHY, ADMINISTRATIVE LAW & PRACTICE § 5:67(b) & (c) (3d ed. 2015)(“It is well-established that an unexplained departure from precedent should be overturned as arbitrary.”); see, e.g., In re Application of Rockies Cab Co., Dkt 09A-479CP, et al., 2011 WL 5056328 *3 (Colo. P.U.C. Sept. 16, 2011).  When it fails to do so, the decision may be vacated and remanded.

The Masterpiece Bakeshop majority did not hold that when a state overrides a bakeshop proprietor’s religious objections to selling celebratory cakes for a same-sex wedding or commitment ceremony, it must also remove from bakeshop proprietors all discretion over printing any religious message a customer desires.  Justices Gorsuch and Alito suggested just such a rule, Masterpiece Cakeshop, *14-*18 (Gorsuch, J., concurring).  The Court would have been compelled to vacate the Commission’s ruling had Justice Kennedy’s opinion adopted such an approach.  But barring such a holding the Colorado Civil Rights Commission was, at most, required to explain the consistency in its decision-making.   The Commission’s different approaches to Craig v. Masterpiece Cakeshop and William Jack’s complaints is hardly so unusual as to suggest an illicit anti-religious bias, or even an unacceptable inconsistency in the Commission’s decision-making.

Perhaps most importantly, the Colorado Division of Civil Rights had neither completed its investigation nor made a determination regarding William Jack’s charges at the time the Commission decided to uphold the ALJ’s decision that Masterpiece Bakeshop had violated the statute.  It is unreasonable to expect an agency to reconcile a decision with potential cases in the investigatory stage.  All the more so here, because the body accused of bias, the Colorado Civil Rights Commission, plays no role in the investigatory process.  Determinations of probable cause are made by the staff of the Civil Rights Division.

In any event, the ALJ, whose initial decision the Commission affirmed, did address a similar question to the one William Jack would later raise, namely whether his finding of discrimination would require bakery proprietors to accept for printing all sorts of offensive messages.  As the ALJ explained:

Respondents argue that if they are compelled to make a cake for a same-sex wedding, then a black baker could not refuse to make a cake bearing a white-supremacist message for a member of the Aryan Nation; and an Islamic baker could not refuse to make a cake denigrating the Koran for the Westboro Baptist Church. However, neither of these fanciful hypothetical situations proves Respondents’ point. In both cases, it is the explicit, unmistakable, offensive message that the bakers are asked to put on the cake that gives rise to the bakers’ free speech right to refuse. That, however, is not the case here, where Respondents refused to bake any cake for Complainants regardless of what was written on it or what it looked like. Respondents have no free speech right to refuse because they were only asked to bake a cake, not make a speech. Craig v. Masterpiece Bakeshop, Inc., Dkt No. CR 2013-0008, slip op. 8-9 (Dec. 6, 2013) (Robert N. Spencer, ALJ) [App. 75-76.]

And the overall outline of the Commission’s approach is readily discernible, given its affirmance of the ALJ’s decision and its May 30, 2014 discussion.  That would ordinarily suffice for affirmance of an agency’s decision.  Bowman Transp., Inc. v. Arkansas-Best Freight System, 419 U.S. 281, 285-86 (1974)(“[w]hile we may not supply a reasoned basis for the agency’s action that the agency itself has not given, . . . we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned”); accord, Motor Vehicle Mfrs. Assn v. State Farm, 463 U.S. 29, 43 (1983)(same).  No more, and perhaps less, should be required to rebut allegations of bias partially grounded in claims of inconsistent agency decision-making.

For the Commission, the exercise of freedom of expression in Masterpiece Bakeshop’s case was inextricably interrelated to denying service to same-sex couples on a discriminatory basis, as wedding cakes to celebrate same-sex unions would only be needed by same-sex couples.  [Tr. 891-92, 894, 895-96; JA 198, 199-200, 201].  Whoever sought the cake, even if the person were the heterosexual mother of one member of the same-sex couple, Phillips’ refusal to bake the case would be based on the sexual preference of the people for whom the cake was purchased.  On the other hand, refusals to add religiously-grounded offensive or derogatory messages to cakes was not inextricably interrelated to denying service to Christians.  Christians opposed to same-sex marriage could order cakes, but not necessarily adorned with the particular anti-same-sex-marriage statements they wished.  And people with other views could obtain cakes, but not necessarily with the particular messages they wished to appear on the cake.  These are certainly reasonable distinctions, which, though perhaps lacking the rigor and sophistication those offered by Supreme Court Justices, are surely not evidence of an illicit denigration of religious belief in general, nor Jack Phillips’ religious beliefs in particular.  And indeed, they are certainly intuitively defensible distinctions, even if the Supreme Court ultimately decides to reject them.

Moreover, the nature of bakeries obligations to provide the celebratory cake for same-sex couples on an equal basis is a real issue.  Charlie Craig and David Mullins did not seek a wedding cake to create a legal case.  And at least 5-6 same-sex couples had been refused wedding-cake-preparation services by Phillips.  Craig v. Masterpiece Bakeshop, Colo. Civ. Rights Div., Charge No. P20130008X, Probable Cause Determination (March 5, 2013) [JA 72-75]; see, Masterpiece Cakeshop, at *6.  William Jack’s charges were unique and clearly calculated solely to improve the legal position of Masterpiece Bakeshop and others who wished deny same-sex couples wedding-related services.  It is not clear to which “exercise of religion” the cakes purportedly desired by William Jack would relate. Such cakes surely do not play a central role in any religious (or even secular) ceremony; by contrast, wedding cakes do play such a role in marriage ceremonies.  Nor is it clear that anyone else wishes to purchase a cake expressing the belief that same-sex marriage violates their own religious beliefs.

It is not even clear that William Jack himself really wished to purchase the cakes he requested, or would have done so had the bakeries agreed to his request.  For his purposes, to create a controversy seemingly analogous to refusal to sell same-sex couples wedding cakes, William Jack merely needed to request a cake – he didn’t necessarily have to complete the purchase.  And as the Interim Director of the Civil Rights Division noted in her letter finding no probable cause, William Jack could not even explain to the bakeries or the Civil Rights Division’s investigative staff why he wanted the cakes.  Determination, Jack v. Le Bakery Sensual [JA 243]; Determination, Jack v. Gateaux, Ltd.  [JA 253].

Agencies should not have an obligation to treat these two types of issues with the same rigor.  And failing to do so certainly does not show that the Commission’s decision in Craig v. Masterpiece Cakeshop reflected an illicit anti-religious motivation.  One of the benefits of case-by-case adjudication is its potential allow agencies to engage in incremental learning, one benefit of adjudication over legislation.  The corresponding strength of proceeding by legislation (or rulemaking) is an agency’s ability to comprehensively dealing with all relevant issues at one time. Requiring the Commission to deal with manufactured cases (in the investigative stage no less), and reconcile all its cases immediately deprives agencies of the advantages of incremental learning.

And, there is a slippery slope problem.  It is much easier to distinguish a celebratory cake customarily sought for a wedding reception than to distinguish among all the various messages that could conceivably be placed on a cake.  If bakery owners may not refuse requests to decorate cakes with any religious messages, no matter how offensive or denigrating to others, it is difficult to seek how they can be permitted to refuse requests for any messages, including any offensive, denigrating, or demeaning ones that have nothing to do with religion.  See, Matal v. Tam, 582 U.S. –––, 137 S.Ct. 1744, 1763–64 (2017)(cited in Masterpiece Bakeshop, slip op. at *11); Minnesota Voters Alliance v. Mansky, — U.S. —, 2018 WL 2973746 *10-*12 (June 14, 2018)(political apparel in polling places).  The bakery owners in the cases brought by William Jack explained some of the requests they had previously rejected.  [JA 245.] (image of “a sexy little school girl”); [JA 254.] (language like “eat me,” “ya old bitch,” as well as images described as “naughty”).  It is one thing to impose such a burden on the Government when it opens up a public forum or allows parties to select their trademarks; it is quite another to impose such a burden on private individuals, even ones offering public accommodations.

Conclusion

Perhaps Masterpiece Bakeshop is just a one-off, to escape a constitutional case that a key Justice was simply not ready to decide.  But the decision may have unintended consequences. It may create another form of what Micheal Coenen has described as constitutional privileging, adopting different procedural rules for claims of religious or anti-religious bias by administrative tribunals.  See, Michael Coenen, Constitutional Privileging, 99 VA. L. REV. 683 (2013).