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The United States Supreme Court recently held a cake baker in Colorado had the right to refuse to make a wedding cake for a gay couple based on his sincerely held religious beliefs.  In 2012, Charlie Craig and Dave Mullins asked Jack Phillips, the owner of Masterpiece Cakeshop, Ltd., to make a wedding cake for their marriage celebration.  At the time, Colorado did not recognize same sex marriage.  Phillips is a Christian who does not believe in same sex marriage and therefore refused to make the wedding cake.  He did, however, offer to sell the couple a birthday cake, cookies, or brownies.  He argued requiring him to make a wedding cake was forcing him to use his expressive talents to support a cause in which he does not believe.

The couple filed a charge of discrimination asserting Phillips’ conduct violated public accommodation laws.  Under the Colorado Anti-Discrimination Act (CADA), it is “a discriminatory practice and unlawful for a person . . . to refuse, withhold from, or deny to an individual or a group . .  . the full and equal enjoyment of goods, services, facilities, and privileges, advantages, or accommodations of a place of public accommodation.” Colo. Rev. Stat. §24-34-601(2)(a)(2017).

The Colorado Civil Rights Division investigated and found probable cause Philips violated CADA because he regularly refused to make wedding cakes for gay couples.  The Commission then conducted a full hearing.  At the hearing, the Commissioners found Phillips’ religious beliefs could not be carried into the public sphere or commercial domain if he chose to conduct business in Colorado.  The Commission determined he violated CADA.  Phillips appealed to the Colorado Supreme Court which declined to hear the case.

The United States Supreme Court granted review and sided with Phillips.  The Court found the Commission’s treatment of the case violated the State’s duty under the federal constitution’s First Amendment which prohibits laws or regulations hostile to a religion or religious viewpoint.  Based on this, the Court held the Commission’s actions and sentiments in the hearing violated the Free Exercise of religion clause of the federal constitution.   

So what does this case mean?  While there is a lot of sizzle here, the impact on employers is unclear.  Can an employer argue it will not hire an employee because of the employee’s sexual orientation?  Definitely not if there is a state law prohibiting such action.  Even without a state law, some federal Circuits have held sexual orientation discrimination is prohibited under sex and or gender discrimination. The Equal Employment Opportunity Commission (“EEOC”), the federal watchdog for employment discrimination laws, also takes this position as well. Check with competent local employment counsel before you take any such actions.  And what about freedom of religion?  Does this mean employers can discriminate based on sincerely held religious beliefs?  In most cases no.  Again, before moving in this direction, seek competent local counsel.  So where do we stand; no one yet knows.  The key is to know any decision based on these considerations is highly charged and should be made only after seeking competent counsel.  Hopefully, the next time the Supreme Court addresses these issues, it will provide employers with clearer advice.   

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.