Another ‘gay cake’ controversy was settled this week, and with it the opinions issued in Masterpiece Cakeshop received predictable, but no less prestigious, citations from the United Kingdom Supreme Court in its judgment given in Lee v Asher Baking Company Ltd and ors.
Like the Supreme Court of the United States, the court in London handed victory to the objecting baker, although the British judges arguably provided a much less opaque answer to the underlying legal questions than Anthony Kennedy did in his more cautious majority opinion. [I provided a complete review of the facts and issues in both cases in an earlier post.]
In sooth, the only clear conclusion to emerge from the Masterpiece majority opinion was the fact that Jack Phillips, in refusing to bake a cake for a gay marriage ceremony, was denied a fair hearing. Instead of bringing finality to the question that dominated dinner-party arguments, the court would only hold that ‘when the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.'[slip opinion, p.3]. Other commentators have been more severe: “…instead of reaching a principled decision in this case, [Justice] Kennedy cobbled together his seven-member majority by writing an amorphous opinion that shows a lack of both intellectual clarity and moral courage”, wrote Professor Richard Epstein in the case’s wake.
Across the Atlantic, Lady Hale delivered a crisp 30-page unanimous opinion for the UK Supreme Court that is decidedly less evasive [and, to boot, certainly less floral than the lovely outfit she donned, see vid]. Indeed, the Supreme Court explicitly resolves the question presented: namely ‘whether it is unlawful discrimination, either on grounds of sexual orientation, or on grounds of religious belief or political opinion, for a bakery to refuse to supply a cake iced with the message “support gay marriage” because of the sincere religious belief of its owners that gay marriage is inconsistent with Biblical teaching and therefore unacceptable to God.’ [para.1]
Considering whether the baker’s refusal to bake the cake was an impermissible discrimination on grounds of sexual orientation, contrary to the Equality Act (Sexual Orientation) Regulations (NI) 2006, and an invasion of religious and political belief contrary to the Fair Employment and Treatment (NI) Order 1988, the Court allowed the appeal, holding that neither the Regulations nor the Order ‘impose civil liability for the refusal to express a political opinion or express a view on a matter of public policy contrary to the religious belief of the person refusing to express that view.’ [para.36]
However, the breadth of the discussion is, in places, striking. Emphasizing that the baker’s objection lay in being required to promote a message, the court explained that ‘[t]he situation is not comparable to people being refused jobs, accommodation or business simply because of their religious faith. It is more akin to a Christian printing business being required to print leaflets promoting an atheist message.’ Here, the court’s reasoning may be similar in effect to the Supreme Court in Masterpiece, for it is bound to create further confusion as to when and to what extent a religious belief will be so tied to the provision of a service so as to undergird the denial of that service on grounds of conscience.
The court also held that that the rights to freedom of thought, conscience and religion (ECHR, art 9) and to freedom of expression (ECHR, art 10) under the European Court of Human Rights were engaged, but even as qualified rights could not be limited ‘in such a way as to compel providers of goods, facilities and services to express a message with which they disagree, unless justification is shown for doing so.’ [para.56]
What did the British judges take away from Masterpiece? In fact the UK Supreme Court chose to close its judgment with a ‘post-script’ detailing the disposal of the American case. After briefly summarizing the facts of the case (which, Lady Hale notes, ‘are not the same’), and the holding of the majority, Lady Hale focuses her important coda on the interpretative divisions at the heart of the American case:
The important message from the Masterpiece Bakery case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics. One can debate which side of the line particular factual scenarios fall. But in our case there can be no doubt. The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation. If and to the extent that there was discrimination on grounds of political opinion, no justification has been shown for the compelled speech which would be entailed for imposing civil liability for refusing to fulfil the order
The gloss given to Masterpiece by the British court is curious for a few reasons. Firstly, is it readily apparent from a reading of the splintered opinions in Masterpiece that the ‘clear distinction’ distilled by Lady Hale is so clear? For a start, the first half of Lady Hale’s dichotomy – the ‘cake conveying a particular message’ – only half captures the debate at the centre of the conflicting concurrences between two sides of the court. Rejecting the idea that message-carrying cakes made all the difference, Justice Gorsuch dismissed the distinction altogether, writing that it would not be “proper for this or any court to suggest that a person must be forced to write words rather than create a symbol before his religious faith is implicated.” Indeed, it seemed quite clear that two members of the court, Justices Thomas and Gorsuch, were prepared to rule that cakes that did not carry any message at all, but which were solely requested for particular ceremonies like same-sex marriages, were expressive enough to warrant protection on conscience grounds. Of course, the first half of Lady Hale’s dichotomy may just be half-baked here in this small snippet. If she meant to include cakes-qua-symbols in her category of ‘cakes that convey particular messages’ (whether or not they contain words), then these critical comments would necessarily lose their force. And, actually, her short summary [at para.61] of the positions taken by the US justices contain a more accurate description of the variety of opinions:
Justices Ginsburg and Sotomayor, in dissent, drew a clear distinction between an objection to the message on the cake and an objection to the customer who wanted the cake. The other bakery cases had been clear examples of an objection to the message rather than an objection to the customer. In their view the objection in this case was to the customer and therefore a violation. Justices Kagan and Breyer, who voted with the majority on the lack of neutrality point, also accepted that the Commission could have based its reasoning on that distinction – the other bakers would have refused to make cakes with the demeaning messages for anyone, whereas this baker had refused to make this cake because it was a gay couple who wanted it. Justices Thomas and Alito, on the other hand, considered that to make a cake for a gay wedding was expressive in itself and thus compelling it required strict scrutiny. Justice Gorsuch would also not have distinguished between a cake with words and a cake without.
In the end, whether or not Lady Hale completely captured the divisions on the US court, its duelling opinions appear to have provided a useful set of notes for her and her colleagues. Indeed, they seem to have inspired a more decisive outcome in the British case, for while their American colleagues could not even agree on what the cake in Masterpiece was actually doing (messaging, expressing, or symbolizing), Lady Hale and the UK justices unanimously concluded that ‘in our case there can be no doubt. The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation.’