Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, speaks outside the U.S. Supreme Court as the court listens to arguments in the cake of Masterpiece Cakeshop vs. Colorado Civil Rights Commission. In 2012, Phillips refused to make a wedding cake for a gay couple, saying it was against his religious beliefs.
The U.S. Supreme Court, in ruling on behalf of a Lakewood baker who in 2012 refused to make a wedding cake for a gay couple, dealt a major rebuke to Colorado’s Civil Rights Commission by finding that the panel rejected the baker’s First Amendment rights.
That decision — focusing on the commission’s “hostility” and unfair decision-making — is likely to raise questions about how the commission operates in the future.
But in terms of tangible changes to the panel, which was at the center of fierce debate during the recently ended 2018 legislative session, major alterations seems unlikely.
“The decision, while very critical of the (Colorado Civil Rights Commission) and how it handled this particular case, doesn’t say anything or make any effort to curtail the CCRC’s authority,” said Christopher Jackson, an attorney at the Denver law firm of Sherman & Howard who focuses on appeals cases.
The justices found that members of the commission made “official expressions of hostility to religion” during their deliberations on the case centering on Masterpiece Cakeshop and baker Jack Phillips and his refusal to make a cake for Charlie Craig and David Mullins.
“The Colorado Civil Rights’s consideration of this case was inconsistent with the state’s obligation of religious neutrality,” Justice Anthony Kennedy wrote in the Supreme Court’s 7-2 decision. “… When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution required.”
Nevertheless, it doesn’t appear the commission will undergo any significant change.
Craig Konnoth, an associate law professor at the University of Colorado, said he doesn’t think the ruling will alter the Colorado Civil Rights Commission’s authority.
“The Supreme Court disagrees with, and overturns, lower court decisions in most of the cases it hears,” he said. “We still respect those courts, and abide by their decisions, the vast, vast majority of which never reach the Supreme Court. The CCRC should be treated with the same respect — just because some members of the federal Supreme Court disagreed with its reasoning, it in no way diminishes the authority and dignity it has as a state body to protect the rights of Coloradans of all backgrounds.”
Konnoth added that it’s unlikely the ruling will have any impact on the commission’s past cases.
A spokeswoman for the Colorado Department of Regulatory Affairs, under which the commission is housed, did not respond to a request for comment.
Republicans in the Colorado General Assembly this year, as the Supreme Court case was pending, battled for significant changes to the panel, which they said puts businesses at an unfair disadvantage. They jockeyed to change how the commission’s seven members are appointed and who is qualified, as well as the power it wields as lawmakers debated reauthorizing its future.
Democrats soundly rejected those propositions, with members of the party in the state’s House of Representatives — which Democrats control — vying for the commission to be reauthorized in its current form with no changes.
In the waning hours of the legislative session, a deal was passed that does alter the commission’s makeup some, but doesn’t change its powers or how it operates.
House Speaker Crisanta Duran, D-Denver, speaks as dozens rally in February on Tuesday at the Colorado Capitol to protect the Colorado Civil Rights Commission in an event organized by Democrats and LGBT advocacy groups. Republicans, however, say they don’t want to do away with the panel.
The agreement alters the membership of the seven-person, governor-appointed body to mandate that it comprise three Democrats, three Republicans and one unaffiliated member. Three of the members will have to represent business interests, as well, and the commission will now be subject to legislative audit.
Also as part of the deal, should the Senate reject one of the governor’s appointees to the commission, the governor will not be allowed to reappoint that person for two years.
The legislation reauthorizing the commission, House Bill 1256, keeps the panel operating until 2027, when legislators will next get a chance to change it through statute.
This is a developing story that will be updated.