William M. Pinzler
William M. Pinzler (NYLJ/Rick Kopstein)

Three years ago, in Burwell v. Hobby Lobby Stores, 573 U.S. 22 (2014), the U.S. Supreme Court held that the Religious Freedom Restoration Act (RFRA) can be applied to closely held corporations whose owners have sincerely held religious beliefs. RFRA prohibits the government from substantially burdening a person’s exercise of religion unless the government demonstrates that the application of that burden to that person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. RFRA covers “any exercise of religion, whether or not compelled by, or central to a system of religious beliefs.” 42 U.S.C. §2000cc-5(7)(A). See Pinzler, “Hobby Lobby and Piercing the Corporate Veil,” N.Y.L.J. Sept. 4, 2014.)

Case Background

The Supreme Court has granted certiorari in Masterpiece Cakeshop and Jack Phillips v. Colorado Civil Rights Commission and Craig and Mullins. The question presented is whether applying Colorado’s public accommodations law to compel a “cake artist” (a baker) to prepare a cake in honor of a customer’s gay wedding celebration violates his “sincerely held religious beliefs” about gay marriage and thus violates the Free Speech or Free Exercise clause of the First Amendment.

David Mullins and Charlie Craig visited Masterpiece Cakeshop in July 2012, to order a cake for their upcoming wedding reception. Mullins and Craig planned to marry in Massachusetts and then celebrate with family and friends back home in Colorado. Masterpiece owner Jack Phillips informed them that because of his religious beliefs the store’s policy was to deny service to customers who wished to order baked goods to celebrate a same-sex couple’s wedding.

Long-standing Colorado state law prohibits public accommodations, including businesses such as Masterpiece Cakeshop, from refusing service based on factors such as race, sex, marital status or sexual orientation. Mullins and Craig filed complaints with the Colorado Civil Rights Division (CCRD) contending that Masterpiece had violated this law. The CCRD ruled that Phillips illegally discriminated against Mullins and Craig. In December 2013, an administrative law judge issued a decision confirming that finding. The baker appealed the ALJ’s ruling to the Colorado Civil Rights Commission. The Commission’s order affirmed previous determinations that Masterpiece’s refusal to sell Mullins and Craig a wedding cake constituted discrimination on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act, brushing aside the baker’s purported distinction between gay marriage, to which he was opposed, and homosexuality, to which he was not opposed.

The baker appealed, asserting that he had been a Christian for about 35 years and that he believes that his decorating cakes is a form of art by which he can honor God. It would displease God, he argues, to create cakes for same-sex marriages. The baker claims not to be opposed to homosexuality, but only to same sex marriage. He also will not make cakes with hateful messages, which celebrate Halloween and will not use any products containing alcohol, among others.

The Colorado Court of Appeal concluded that the administrative law judge did not err when he found that the baker’s refusal to create a wedding cake for the plaintiffs was “because of their sexual orientation in violation of the Colorado Anti-Discrimination Act.” After its loss in the Colorado Court of Appeals, the baker appealed to the Colorado Supreme Court. When that court declined to hear the case, he petitioned the Supreme Court to hear the case. On June 26, 2017, the Supreme Court granted the writ of certiorari.

Religious vs. Political Beliefs

The free exercise of religion has been held to permit people to have the right to believe and profess whatever religious doctrine one desires. Emp’t Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 877 (1990). If a government action substantially burdens a person’s exercise of religion, the person is entitled to an exemption from the rule unless the government can demonstrate that the application of the burden is the least restrictive means of furthering a compelling governmental interest. Merely having religious practices is not sufficient. In Church of Lukumi Bablu Aye v. City of Hialeah, 508 U.S. 520 (1993) the court held that a municipal ordinance prohibiting ritual animal sacrifice, even if a central part of the petitioner’s belief system, was enforceable.

For decades, the Supreme Court and the lower federal courts have consistently held that the courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim. See, e.g., Thomas v. Review Board, Indiana Employment Security Div., 450 U.S. 716; Presbyterian Church v. Hull Church, 393 U.S. 450; Jones v. Wolf, 443 U.S. 595, 602-06 (1979). In earlier cases, petitioners were members of a church or sect, which had articulated principles or belief systems. In recent years, however, petitioners have proclaimed themselves to be devout Christians, but not necessarily to be members of a church or sect. Courts have had to address personal beliefs and not the practices or beliefs of a church or sect, leaving them adrift to judge a belief in the absence of any articulated religious tenets.

Courts have often evaluated the sincerity of religious assertions. Conscientious objectors have long been subject to inquiries regarding the sincerity of their religious beliefs. See United States v. Seeger, 380 U.S. 163, 185 (1965). Religious claims have been reviewed and rejected in criminal cases. See, e.g., United States v. Quaintance, 608 F.3d 717, 718-19 (10th Cir. 2010). Courts are best able to examine the issue of “sincerity” where extrinsic evidence is evaluated and objective factors dominate the analysis. See Int’l Society for Krishna Consciousness v. Barber, 650 F.2d 430 (2d Cir, 1981).

In recent cases, such as Hobby Lobby, the petitioner’s belief bears a striking similarity to the social agenda of the “religious right”— birth control, abortion and now gay marriage. These individuals seem to find one type (and only one type) of state-permitted conduct to be anathema to their religious beliefs. The record here is barren of any evidence of the extent of the baker’s religious beliefs beyond the narrowly stated belief of the objection to gay marriage, but not to homosexuality. The types of cakes he will not bake sound, quite frankly, like a series of political, or perhaps moral, but not religious objections.

It is widely recognized that political beliefs, regardless of how strongly held, are not religious beliefs protected by the Free Exercise clause. In this case, the baker claimed to be opposed to gay marriage but not homosexuality. What is the basis for the baker’s objection? It is not scripture based. It is claimed to be religiously based, but what is the religion? He has said that he will not bake cakes which are anti-American, which have an anti-family theme, are racist or which are “indecent.” Are these objections religious and how does one objectively make this determination?

This list of cakes the baker will not bake seems to be political rather than religious. He should be required to defend his belief that these objections are religious and not political, and the trier of fact should decide if that belief is political in “religious clothing” or truly a religious belief. The trier of fact should not be asked to evaluate the moral truth underlying the baker’s “religious” claim. Rather it should attempt to determine, as objectively as possible, the factual sincerity of these asserted religious beliefs.

Nothing in the Colorado anti-discrimination statute prevents the baker from holding whatever religious belief he wishes. The law merely prohibits the baker from discriminating against potential customers on account of their sexual orientation. In Newman v. Piggie Park Enters, 256. F. Supp. 941, 945 (D.S.C 1966), aff’d in relevant part and reversed on other grounds, 377 F. 2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968), the court held that people have a constitutional right to espouse the religious beliefs of their own choosing, but they do not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional duties of other citizens.

The Supreme Court has consistently held that states have a compelling interest in eliminating discrimination. This case was decided under Colorado law and the Colorado Constitution. Colorado courts have consistently recognized that its constitution embodies “the same values of free exercise and governmental non-involvement secured by the religious clauses of the First Amendment.” Ams. United for Separation of Church & State Fund. v. State, 648 P.2d 1072, 1081-82 (Colo. 1982).

The powerful and comprehensive opinion of the Colorado Court of Appeal, decided primarily under Colorado law, should be affirmed as a matter of state law. However, if the Supreme Court determines it should consider the First Amendment claims of the baker, it should set out objective standards by which lower courts can evaluate the “religious” belief of claimants. By any objective standard, regardless of how moral the baker may feel himself to be, his opposition to gay marriage, but not homosexuality, is political (or moral) rather than religious. Such views, while important to the baker, should not be held to rise to the level of protection under the Free Exercise clause.