In Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018), the Supreme Court’s seven-member majority claimed that the Colorado Civil Rights Commission had exhibited “hostility” toward a Colorado baker’s religious beliefs.[1] But upon closer examination, the Court’s claims belie an uncharitable, perhaps even hostile, interpretation of the Colorado Civil Rights Commission. Here I offer some important context for the Colorado Civil Rights Commission’s ruling; context that the Court overlooked. This added context undercuts the Court’s claim that the Colorado Civil Rights Commission exhibited hostility to religion in its ruling against the baker.

On June 4, 2018, in a 7-2 decision, the Supreme Court of the United States “invalidated” a ruling of the Colorado Court of Appeals in Masterpiece Cakeshop v. Colorado.[2] The Colorado court had upheld a Colorado Civil Rights Commission ruling that a baker violated Colorado’s Anti-Discrimination Act by refusing to make a wedding cake for a same-sex couple. In invalidating the Court of Appeals’ ruling, the Supreme Court didn’t take a position on the substantive issues of whether the baker’s free speech or religious free exercise rights permitted him to refuse to make the same-sex couple’s wedding cake. Rather, the Court invalidated Colorado’s ruling because the Civil Rights Commission had exhibited hostility toward the baker.

Justice Anthony Kennedy wrote the opinion for the majority. The bulk of Kennedy’s argument focused on statements made by two of the seven members of the Colorado Civil Rights Commission, which he claimed exhibited hostility toward the baker’s religious belief. He also cited the fact that “[n]o commissioners objected to the comments” and that they were not “disavowed” in later proceedings as evidence of the Commission’s hostility.[3]

In isolation, at least some of the quotes Kennedy offered in his opinion can reasonably be interpreted as exhibiting hostility toward the baker’s religious beliefs. But upon closer inspection and with additional context added, this interpretation loses much of its plausibility. In the end, one could reasonably conclude that it is Kennedy that is hostile to the Commission rather than the Commission to the baker.

In what follows, I lay out how Kennedy describes the quotes he cites from the Commission, and then go on to provide additional context for the quotes Kennedy offers. I argue that, once contextualized, Kennedy’s reading of the Commission becomes significantly less plausible. I then close by looking at Kennedy’s past jurisprudence around hostility toward religion, arguing that Kennedy has a much broader conception of hostility to religion than most other Justices.


I. Uncharitable Interpretations and Unclear Hostility in Masterpiece

Kennedy offered statements made by two members of the seven-member Colorado Civil Rights Commission as evidence of the Commission’s hostility.[4]

First, Kennedy provides two claims made by Commissioner Raju Jairam. Kennedy writes that Jairam “suggested that Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’”[5] Kennedy also cites Jairam’s claim that “if a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.”[6] Kennedy acknowledges that these statements are ambiguous:

“Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.”[7]

It’s unclear whether “the comments that followed” that Kennedy refers to are the comments that follow in Kennedy’s majority opinion or the comments that followed in the original Commission hearing that Kennedy is quoting from. Because Kennedy is unclear on this point, let’s consider both interpretations.

In looking at the comments that surround Jairam’s statements in the transcript for the Commission hearing, it is hard to see anything that lends credence to Kennedy’s interpretation of Jairam’s remarks as “inappropriate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced.” At the hearing leading up to the first comment Kennedy cites, another one of the Commissioners, Diann Rice, was offer her reasoning for thinking that the law under which charges against the baker were brought was a constitutional law. The transcript from the hearing quotes Rice as saying the following:

“I think that the Colorado Antidiscrimination Act is written in a very neutral manner. Some exceptions have been made for religious organizations or businesses or organizations that clearly serve a single sex. As noted a women’s clinic or some organization like that. But those are very clear—clearly delineated exceptions. If Masterpiece Cakeshop were—or Mr. Phillips were an ordained minister and he was only serving commissioners or congregates of his church, that might be a different situation. But he is—does have a public business and is serving the public. So I—you know, I don’t think that this case falls within the exceptions . . . I think there is a very significant and important reason for the Antidiscrimination Act and a significant—it is a significant benefit to the state to have this statute and to enforce it.”[8]

After Rice concluded, the Commission Chair, Katina Banks, acknowledged Rice’s comments, agreed with them, and asked “does anyone else have anything they want to add?” It is at this point that Jairam spoke. The meeting transcript records a back and forth between Jairam and Banks as follows.

Commissioner Jairam: I don’t think the act necessarily prevents Mr. Phillips from believing what he wants to believe. And—but if he decided to do business in the state, he’s got to follow (inaudible). And I don’t think the Act is overreaching to the extent that it prevents him from exercising his free speech.

Chairwoman: Well, free speech we already—we talked about. But what do you think about his—

Commissioner Jairam: His belief system, yes.

Chairwoman: Right, right, his religious beliefs.

Commissioner Jairam: We all have our own belief systems.

Chairwoman: Yes.

Commissioner Jairam: And, you know, as a businessman, I shouldn’t allow my belief system to impact how I treat people, bottom line.

Chairwoman: Okay. That is the bottom line, Commissioner Jairam, thank you . . . To make sure I’m understanding, we’re saying that we think the statute—there are good reasons for the statute; that it is valid; and that it’s neutral in general in its application simply—just as the administrative law judge determined.[9]

There are several things that are illuminated once this additional context has been given.

First, the Commission clearly has as one of its values that Colorado law be neutral toward religion (as evidenced by the comments of Rice and Banks).

Second, the Commission offered a cogent rationale for concluding that the law in question was neutral toward religion.

Third, Jairam seemed to be making an important and long-held distinction in United States First Amendment jurisprudence—namely, that the right to religious belief is absolute, but that the right to religious action is not. [10] Jairam seems to be making a point about the ability of the state to impose reasonable and neutral restrictions on actions, even while the right of belief remains absolute.

Fourth, the conversation is one that is blending together questions about free speech with questions about free exercise of religion.

In that light, it takes a very uncharitable reading to attribute to Jairam the views that Kennedy does.

The context surrounding Jairam’s second quote even more strongly undercuts Kennedy’s interpretation. In the second quote, Jairam responded to “an argument by the respondent” that “he didn’t offer to sell them a wedding cake, but he offered to sell them different products.”[11] In expressing why he didn’t find that argument compelling, Jairam is on record as stating the following:

“And I believe the—it was best said by the judges in the New Mexico case, where the laws are here just to protect individuals from humiliation and dignitary harm. And that they should be very clear, that is, we do not want people to feel undignified when they walk into any place of business and do business that, you know, serves the public.”

“And I will also, you know, refer—you know, I’m referring to the comments made by Justice (inaudible) in that case. And essentially, he was saying that if a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise. And I think it was very well said by that judge.”[12]

The added context presents the reader with a significant detail Kennedy overlooks: Jairam was offering a paraphrase of a New Mexico judge, not his own view. Once again it seems to me very plausible that Jairam’s underlying point distinguishes between the absolute right to belief and the more limited right to action, especially when acting as a proprietor in the public sphere. Taken more fully in context, Justice Kennedy’s conclusion that Jairam made “inappropriate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights” seem not only uncharitable, but implausible full-stop.

But as stated earlier, Kennedy writes ambiguously about whether it is the context of the Commission hearing or the subsequent portion of his opinion that is supposed to make it clearer that Jairum’s comments exhibited hostility to religion. Having discussed Jairum’s statements, I turn to the subsequent portion of Kennedy’s opinion.

After offering Jairam’s comments as evidence of hostility toward the baker’s religious beliefs, Kennedy cites a statement from a second commissioner at a later hearing. The transcript attributes the statement to a “female speaker.” The speaker is recorded as saying the following.

“I would also like to reiterate what we said in the hearing for 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.”[13]

In discussing this quote Kennedy writes that,

“To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. 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 antidiscrimination law—a law that protects against discrimination on the basis of religion as well as sexual orientation.”[14]

At first blush, the second speaker’s comments more plausibly indicate hostility toward the baker’s religious belief than Jairam’s. But context once again complicates things, as does a careful look at what Hess actually said.

First, unlike Jairam’s comment, the context surrounding this quote provides much less guidance about the second speaker’s intentions. The second speaker’s remarks were offered very near the close of the meeting, after the Chair asked each member for any closing comments they wanted to offer before a final motion. The quote commissioner was the last to offer a comment, and she did so after the conversation seemed to have mostly wrapped up. These complicating circumstances make it difficult to be sure how her comment connected to the remarks that preceded it.

To Kennedy, the fact that “[t]he record shows no objection to these comments from other commissioners,” is evidence of hostility toward the baker’s religion from the commission as a whole.[15]  But it’s not clear what purpose responding to the comment would have served given that unidentified commissioner’s statement doesn’t seem to have been material to the rest of the discussion or to the outcome of any motions. Rather, it seemed to merely have been offered as a personal sentiment at a time when the Chair allowed each member to say a few final words.

Second, while it may be reasonable for Kennedy to assume that Hess’s comment was about the baker’s belief, Hess never actually references the baker in her comments at all. Rather, all Hess states are some (true) historical claims followed by her opinion that it is despicable rhetoric to use religion to hurt people. But, given the comment’s acontextual nature, Commissioner Hess could just as easily be commenting about the possibility that the baker was feigning sincerely held belief in order to legally justify his discrimination. Hess’s comment is mysterious. It’s an expression of sentiment, but it’s not at all clear how the sentiment was meant to map onto the case at hand or onto the baker’s beliefs.

Although Justice Kennedy interpreted both Jairam’s and the second commissioner’s comments in the light most favorable for the baker, there are important differences between the two. In Jairam’s case, only an uncharitable reading indicates any hostility toward the baker’s religious beliefs. In the second speaker’s case, it is plausible that she exhibited hostility toward Phillips’ religion, but if we look at what she actually said and at the context in which she said it, it is not obvious that this is so.

The majority’s finding that the Colorado Civil Rights Commission’s hostility warranted overturning the lower court becomes even harder to understand in light of Justice Ruth Bader Ginsburg’s observation that these comments were made by only “one or two members of one of the four decisionmaking entities considering this case.”[16]

Kennedy failed to consider the multiple reasonable interpretations of the commissioners’ comments that were available. Given this ambiguity, it would have been more prudent to remand the case for further investigation or to articulate a clearer and more nuanced principle about what should happen when one layer in a multi-level adjudication may have been affected by bias. But Kennedy instead confidently claimed that the elements of hostility were “clear” and invalidated the ruling of the lower Court without remand.[17]


II. Justice Kennedy’s Expansive Understanding of “Hostility to Religion”

What explains Kennedy’s eagerness to go to such lengths to invalidate the lower court’s decision on grounds of “hostility” to the baker’s religious beliefs? The answer may come, in part, from the fact that throughout his tenure on the Supreme Court, Anthony Kennedy embraced a broader conception of what constitutes hostility to religion than most of his colleagues.

For example, Kennedy first expressed his views on hostility to religion in the consolidated case of County of Allegheny v. American Civil Liberties Union, where the Court held that a creche displayed alone at the Allegheny County Courthouse violated the First Amendment but that a Menorah that was part of a larger holiday display at the City-County Building did not.[18] Kennedy stated that the majority’s opinion reflected “an unjustified hostility toward religion” and “a hostility inconsistent with our history and our precedents.”[19]

Kennedy argued that “rather than requiring government to avoid any action that acknowledges or aids religion, the Establishment Clause permits government some latitude in recognizing and accommodating the central role religion plays in our society” and that “[a]ny approach less sensitive to our heritage would border on latent hostility toward religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion and so to the detriment of the religious.”[20]

Kennedy’s statements imply that anything less than limited accommodation of religion is “latent hostility toward religion.” This is a much stronger view than has been typical of the Court since the 1950s.[21]

Justice Kennedy’s comments resulted in swift and strong rebuttals from several of his colleagues on the Court. Justice Harry Blackmun, for example, who penned the opinion for the Court in Allegheny, explicitly rejected Kennedy’s deviation from precedent. Blackmun wrote the following sharp rebuke in response:

“Although Justice Kennedy repeatedly accuses the Court of harboring a ‘latent hostility’ or ‘callous indifference’ toward religion, nothing could be further from the truth, and the accusations could be said to be as offensive as they are absurd. Justice Kennedy apparently has misperceived a respect for religious pluralism, a respect commanded by the Constitution, as hostility or indifference to religion. No misperception could be more antithetical to the values embodied in the Establishment Clause.”[22]

Similarly, Justice Sandra Day O’Connor’s concurrence praised the values of religious pluralism and rejected Kennedy’s characterization of hostility to religion, writing that:

“Contrary to Justice Kennedy’s assertions, neither the endorsement test nor its application in these cases reflects ‘an unjustified hostility toward religion.’ Instead, the endorsement standard recognizes that the religious liberty so precious to the citizens who make up our diverse country is protected, not impeded, when government avoids endorsing religion or favoring particular beliefs over others.”[23]

Justice John Paul Stevens also rebutted Kennedy’s position at two different points in his own dissent. Citing Everson, Stevens wrote that, “[t]he suggestion that the only alternative to governmental support of religion is governmental hostility to it represents a giant step backward in our Religion Clause jurisprudence.”[24]

Kennedy’s view about what constituted hostility to religion was an outlier view when he first joined the Court, and with good reason. But in Masterpiece Kennedy may have finally been able to make his view mainstream. But an overly sensitive test for religious hostility on behalf of those seeking to preserve the rights of others (like the Colorado Civil Rights Commission) is bad for our democracy. It can create a false sense of victimization on the part of those whose religious exercise is even mildly burdened by laws otherwise intended to protect the rights of marginalized persons.

The repercussions from that sense of victimization are already occurring following the Masterpiece case. The baker in the case, Jack Phillips, is currently suing the state of Colorado for exhibiting hostility to his religious beliefs and for violation of his constitutional rights. Phillips’ case relies heavily on the Supreme Court’s conclusion in Masterpiece. By giving Phillips this unwarranted platform, additional harm results from the Court’s knee-jerk conclusion that there was hostility toward Phillips on the part of Colorado.

[1] Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1729 (2018).

[2] Id. at 1732.

[3] Id. at 1721.

[4] Copies of the transcripts from the Commission hearings under discussion can be found here.

[5] Id. at 1729.

[6] Id.

[7] Id.

[8] Transcript of Colorado Civil Rights Commission Meeting, May 30, 2014, 22–23.

[9] Id. at 23–24.

[10] See, e.g., Reynolds v. United States, 98 U.S. 145, 166–67 (1878).

[11] Tr. at 29.

[12] Id. at 29–30.

[13] Transcript of Colorado Civil Rights Commission Meeting, July 25, 2014, 11–12.

[14] Masterpiece, 138 S. Ct. at 1729.

[15] Id.

[16] Id. at 1749 (Ginsberg, J., dissenting) (emphasis added).

[17] Id. at 1729.

[18] County of Allegheny v. ACLU, 492 U.S. 573, 578–579 (1989).

[19] Allegheny, 492 U.S. at 655 (Kennedy, J., dissenting).

[20] Id. at 658

[21] See, Frank S. Ravitch. The Supreme Court’s Rhetorical Hostility: What is ‘Hostile’ to Religion Under the Establishment Clause? 2004 B.Y.U. L. REV. 1031 (2004).

[22] Allegheny, 492 U.S. at 612–13 (1989) (internal citations omitted).

[23] Id. at 631 (O’Connor, J., concurring) (internal quotations omitted).

[24] Id. at 652 (Stevens, J., dissenting).