Diversity Insight

Just the Icing on the Cake

The U.S. Supreme Court was widely expected to decide between religious rights and LGBTQ rights when it issued its ruling in Masterpiece Cakeshop vs. Colorado Civil Rights Commission, the case involving a Colorado baker who refused to bake a cake for a gay wedding. But—in the tradition of the Supreme Court—the justices ducked the main issue and delivered a more narrow ruling in a 7-2 decision that crossed liberal and conservative lines. Justice Clarence Thomas from the right and Justice Ruth Bader Ginsburg from the left took issue with the centrist majority.

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The Court laid out the competing concerns when it stated: “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. . . . At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” Suggesting that a wedding cake is not “just a mixture of flour and eggs,” the Court followed the tradition from Victorian England to post-Civil-War America, noting that today “a whole series of events expected in the context of a wedding would be impossible without it: an essential photograph, the cutting, the toast, and the distribution of both cake and favors at the wedding and afterwards.” Indeed, the fact that nobody likes to eat wedding cake is further proof that it is as much symbol as food.

The high court never decided between religious rights and sexual orientation discrimination because it found that the baker never got a fair chance to present his religious argument. Rather, the Colorado Civil Rights Commission (CCRC) greeted his beliefs in a hostile manner, with one member of the panel referring to his position as “a despicable piece of rhetoric.” That attitude preempted any “full and fair consideration” from a “neutral decision maker,” according to the Court.

It is not the state’s province to decide if a sincerely held statement of religious belief is “despicable”—that’s what separation of church and state is all about. Rather, a state agency must decide whose legitimate competing interests to enforce. The Court noted that the state must act “without undue disrespect for religious beliefs” and without “subjecting gay persons to indignities when they seek goods and services.” The issue was sent back to the CCRC to decide, this time without bias against one party.

There’s a larger message here for employers. When you have to investigate and determine the competing interests of two employees, it isn’t enough to have good written rules. The investigator and the decision maker must start off with open minds and without disrespect for either party. Otherwise, your decision-making process is doomed from the start. Setting aside any hostility or bias, the CCRC and courts must now decide whether religious rights or LGBTQ rights will take the cake in Colorado.

Mark I. Schickman is of counsel with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. You can reach him at 415-541-0200 or schickman@freelandlaw.com.