The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection. That hostility surfaced at the commission’s formal, public hearings, as shown by the record.
After reviewing a series of comments made by the commissioners, Kennedy found one remark exceptionally objectionable:
The commissioner stated: “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” …. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation. . . . In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections. Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs.
In other words, the commission acted like religious bigots, treating Phillips’s conscience views different than conscience objections of others. As a result, “the Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.”
Kennedy underscored how limited was his ruling. “In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated. The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
In this respect, the opinion was a classic Kennedy opinion. Presented with a balancing of interest, he answered, “It depends.” The irony here is that by focusing on the expressed intent to discriminate on the basis of religion, Kennedy may give plaintiffs in the Muslim ban case a leg up. There, the plaintiffs challenge the ban based on Trump’s numerous expressions of religious animus. That may not be determinative in that case (which may turn on entirely different constitutional provisions), but it should serve as a flashing red light to the administration.
Kennedy’s opinion was joined by six other justices, including Elena Kagan and Stephen Breyer, generally considered moderately liberal justices. Those two wrote a separate opinion, emphasizing that the case turned on the remarks of the petitioners. Justice Neil Gorsuch joined in two other concurrences (one stressing the First Amendment freedom of expression issue), and two — Justices Ruth Bader Ginsburg and Sonia Sotomayor — dissented, essentially saying the commissioners’ remarks didn’t matter. Confused? A lot of lower courts will be as well.
In the simplest terms, there is no “clean” win for either side. There is no majority that would have found for the baker absent the discriminatory comments by the commission; in fact, Kennedy strongly hints he might have gone the other way had the commissioners maintained their neutrality. By the same token, there were only two justices who would side against someone discriminating against gay customers no matter the specifics of the case. Kennedy’s ruling provides little guidance for lower courts who will need to, as he says, resolve these cases with “tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”