Commissions, The Constitution and the Court

June 25, 2018
Jennifer Pahre

Jennifer Pahre

University of Illinois College of Law

In 2012, a gay couple went to the Masterpiece Cakeshop in Lakeland, Colorado to order a custom cake for their wedding reception.  But the baker would not agree to make the requested cake, as he did not support gay marriage for religious reasons.

The couple filed a complaint with the Colorado Civil Rights Commission under a statute that prohibits discrimination in a place of business based upon sexual orientation.  The Commission found probable cause for a violation and referred the case for a formal judicial hearing. 

At that hearing, the baker made two First Amendment claims:

1. That creating the cake violated his right to free speech, as he had to express a message that he disagreed with; and
2. That creating the cake violated his free exercise of religion, because his religious beliefs do not support same sex marriage.

He lost on both claims, and the Commission issued an order requiring the baker to stop discriminating.  But he filed a Petition for Certiorari, seeking Supreme Court review, and the Court accepted the case. 

When a Petition for Certiorari is filed, the Supreme Court has many choices.

The Court may accept review, as it did in the Masterpiece Cakeshop case. Or it may decline review, which it does in response to most of the petitions it receives.  The Court can also grant review, vacate the lower court’s decision, and send the case back to the lower court without hearing argument or generating an opinion. When it does this, the Court usually gives some direction to the lower court, such as asking it to reconsider in light of another decision. 

The Supreme Court can also simply send the case back to the lower court for further action. This option is chosen when the Court does not necessarily want the lower court’s order to be nullified, but wants that court to do a particular thing – such as look at newly-enacted statutes that could affect the case outcome.

Or the Court can issue a summary reversal, which just overturns the opinion below without briefing or oral argument. Finally, the Court can set the case aside, and review it at a later session.

Even when the Supreme Court takes a case and hears argument, it has options. It can affirm the holding of the lower court; reverse the lower court; or affirm some part of the lower court’s decision and deny another part. Or, if a majority cannot agree to uphold or reverse any part of the lower court’s main findings, it can focus on an ancillary matter that it finds troubling or interesting, or weigh in on the way the case was handled before it got to the Court.

And that is what happened in the Masterpiece Cakeshop case.

Instead of either affirming the Commission’s order or finding that the baker’s First Amendment rights had been violated, the majority opinion focused on the way that the Colorado Civil Rights Commission had treated the baker’s arguments.

State Commissions are governmental entities and must apply the law neutrally towards religion. But the Court found that the prosecuting commissioner in the Masterpiece Cakeshop case had not acted neutrally. He had made disparaging comments about the baker’s religious views.

Further, the Commission had not treated the baker’s case like similar cases, as its review of other bakery cases included things that it did not consider in the Masterpiece Cakeshop case.  So, the Court found that the proceedings were not impartial—they were hostile towards the baker’s religious beliefs. As a result, the Supreme Court determined that the Commission’s order against the baker must be set aside.

Supreme Court Justice Oliver Wendell Holmes once said, "…there can be no doubt that due process of law embraces the fundamental conception of a fair trial…”  The Masterpiece Cakeshop case confirms that the Supreme Court remains interested in the ways the laws are enforced, as well as in the laws themselves.