It’s a floor wax AND a dessert topping!* The Supreme Court left its most anticipated decisions for another day in a brief session today, but the real action came with the orders from the court. After overturning a Colorado action against a Christian baker in Masterpiece Cakeshop, the court declined an opportunity to address the same issue directly with Arlene’s Flowers — but they did overturn the extant ruling against Barronelle Stutzman. The order sends the case back to court, with direction to consider Masterpiece Cakeshop in a new trial:
The U.S. Supreme Court Monday granted the appeal of a Washington state florist who was fined after she refused to sell flowers to a gay couple for their wedding, and the court erased a lower court ruling against her. …
Monday’s action sends the florist’s case back to the Washington state courts “for further consideration in light” of the decision in the baker case, which offered little guidance on how to balance gay rights and religious freedom.
And that means … what, exactly? No one’s really sure, except that the court has essentially asked for a do-over:
— MSNBC (@MSNBC) June 25, 2018
The difficulty in figuring out the impact of this comes directly from the Masterpiece Cakeshop decision, in which the Supreme Court tried to cut as narrow a swath as possible. In overturning the fines against the baker, the 7-2 decision published three weeks ago largely focused on the overt hostility from regulators not just to the baker but also to the baker’s religious beliefs:
To Phillips, his claim that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. His dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages performed in the State and before this Court issued United States v. Windsor, 570 U. S. 744, or Obergefell. Given the State’s position at the time, there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case. Pp. 9–12.
(b) That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.
In asking for the court to reconsider her case, Stutzman claimed that she suffered from similar disparagement from regulators in Washington. Rather than take the case on that basis, however, the court today kicked it back to the state with the proviso of using Masterpiece Cakeshop as a guide. The new case will put Stutzman in the position of proving unfair consideration rather than having the state defend its actions against the very First Amendment speech rights that Kennedy references above.
Justice Clarence Thomas noted the core issue in his dissent in Masterpiece Cakeshop:
There is an obvious flaw, however, with one of the asserted justifications for Colorado’s law. According to the individual respondents, Colorado can compel Phillips’ speech to prevent him from “‘denigrat[ing] the dignity’” of same-sex couples, “‘assert[ing] [their] inferiority,’” and subjecting them to “‘humiliation, frustration, and embarrassment.’” Brief for Respondents Craig et al. 39 (quoting J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 142 (1994); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 292 (1964) (Goldberg, J., concurring)). These justifications are completely foreign to our free speech jurisprudence.
States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Johnson, supra, at 414. A contrary rule would allow the government to stamp out virtually any speech at will. See Morse v. Frederick, 551 U. S. 393, 409 (2007) (“After all, much political and religious speech might be perceived as offensive to some”). As the Court reiterates today, “it is not . . . the role of the State or its officials to prescribe what shall be offensive.” Ante, at 16. “‘Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.’” Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55 (1988); accord, Johnson, supra, at 408–409. If the only reason a public accommodations law regulates speech is “to produce a society free of . . . biases” against the protected groups, that purpose is “decidedly fatal” to the law’s constitutionality, “for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.” …
In Obergefell, I warned that the Court’s decision would “inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to participate in and endorse civil marriages between same-sex couples.” 576 U. S., at ___ (dissenting opinion) (slip op., at 15). This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.” Id., at ___ (ALITO, J., dissenting) (slip op., at 6). If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.
Thomas’ argument, joined by Neil Gorsuch, was that the court largely sidestepped the core problem and left the issue as a burden on artists to prove bias rather than the state to overcome the First Amendment interests of free speech and freedom of religious expression. That’s the problem Stutzman will face in Washington, when she returns to fight the business-ending fines imposed by the state for her refusal to participate in a same-sex wedding. Masterpiece Cakeshop certainly hints that the Supreme Court will take a dim view of that outcome, but a complete reversal and finding in Stutzman’s favor would have ended the question permanently.
In the short run, Stutzman and religious liberty lives to fight another day, as Thomas wrote in his concurrence, and that’s certainly good for both. In the long run, though, we’ll find ourselves right back to this same place. This order is actually neither a floor wax or a dessert topping.
* – Classic SNL reference explained here.