Controversial Cake: The Masterpiece Cakeshop Decision

Written by Michael Varrige

 

Background

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission originated as a complaint made to the Colorado Civil Rights Commission by a gay couple against a baker who refused to bake a custom wedding cake for their wedding back in 2012 due to his religious objection to same-sex marriage (though the baker did offer to sell any other product to the couple, just not a custom wedding cake). The Commission ruled in favor of the couple, finding that the baker’s refusal to make the wedding cake violated Colorado’s Anti-Discrimination Act. The Commission’s decision was affirmed by the Colorado Court of Appeals and was not heard by the Colorado Supreme Court. The Colorado Anti-Discrimination Act states, in part, “it is a discriminatory practice and unlawful for a person . . . to refuse, withhold from, or deny to any individual or group because of . . . sexual orientation . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation”. It also delineates the process by which a complaint will be heard—by the Commission and eventually appealed to the Colorado Court of Appeals and the Colorado Supreme Court.

In short, the owner of Masterpiece Cakeshop, Jack Phillips, argued that Colorado’s Anti-Discrimination Act violated his First Amendment rights of free exercise of religion and freedom of expression. The Commission countered that a cake was not a form of expression and that the act of baking a cake was neither participating in nor condoning same-sex marriage. For a more thorough look at the arguments made in front of the Supreme Court, please see a prior Legal Pulse post-Review: Masterpiece Cakeshop v. Colorado Civil Rights Commission compiled by Lacey Grummons, the link appears below.

Discussion

            Majority

Justice Anthony Kennedy, writing the majority opinion joined by five of his colleagues, reversed the decision by the Colorado Court of Appeals on the ground that the Commission violated Mr. Phillips’ right of free exercise of religion. Justice Kennedy was joined by traditionally conservative-leaning Justices Neil Gorsuch and Samuel Alito. Typically liberal-leaning Justices Stephen Breyer and Elena Kagan also joined the majority opinion. Justice Clarence Thomas concurred in judgment, but wrote his own separate concurrence instead of joining the majority

The majority determined that “the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.” Essentially, the Court ruled that while Colorado’s Anti-Discrimination Act does not generally violate the free exercise clause, Colorado’s process of determining whether an action has violated the Anti-Discrimination Act must be conducted in a manner that is neutral towards religion. Justice Kennedy pointed to what he called “open hostility” at multiple times throughout the public hearings such as “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” and “one of the most despicable pieces of rhetoric that people can use” in reference to using religion to deny wedding-related services to a same-sex couple.

The Court further took note that no other commissioners took issue with any of these statements as well as what it perceived as disparate treatment of bakers who refused to bake anti-same-sex marriage cakes along with religious texts. These bakers, who appeared before the same Commission as Phillips, were allowed to refuse to bake cakes with anti-same-sex marriage messages because it violated their anti-discrimination beliefs, while Masterpiece Cakeshop was compelled to by the Commission and the Court of Appeals.

The Court then segued to discuss that the Free Exercise Clause “bars even subtle departures from neutrality” and that the State cannot impose regulations that “are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment.” Justice Kennedy followed this discussion by ultimately determining that weighing the State’s interest in protecting its citizens from discrimination could be weighed with sincere religious objections by owners of public accommodations but only in a way that is neutral towards religion. In this case, the Justices did not believe that the claims were weighed in a religiously neutral way and reversed the lower court’s judgment. While ruling in this manner, the Court also felt it necessary to state “[t]he 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”, leaving the door open for further discussion on the topic, both by the Supreme Court itself and in the states.

           Concurrences

Three separate concurrences were written, one by Justice Kagan joined by Justice Breyer, one by Justice Gorsuch which was joined by Justice Alito and another written by Justice Thomas which was joined by Justice Gorsuch.

Justice Kagan focused her concurrence on the disparate treatment between Phillips and the other bakers, who were allowed to refuse to bake cakes with messages they disagreed with. Justice Kagan further indicated that she believed that Phillips violated the Colorado Anti-Discrimination Act and that the Commission could have found that based on a religiously neutral, plain reading of the statute. However, she did not believe that the Commission was religiously neutral and therefore found for Phillips.

Justice Gorsuch, using the doctrine of strict scrutiny, determined that the Commission failed to act neutrally towards Phillips’ religious beliefs and did not satisfy the strict scrutiny test as required by the Free Exercise Clause. He also focused on what he saw as disparate treatment in bakers as previously discussed, allowing a baker to deny anti-same-sex marriage messages as a result of his religious beliefs but not allowing Phillips to decline to bake a cake which in his view was endorsing same-sex marriage due to his religious beliefs. Justice Gorsuch also focused on what he saw was a lack of discriminatory intent on the part of Phillips and determined that he brought a conclusive First Amendment claim which entitled him to judgment.

Justice Thomas first determined that the Commission violated Phillips’ free exercise rights along with the majority. He, though, went further to discuss the free-speech claim made by Phillips in his brief to the Court. Justice Thomas indicated that public-accommodation laws, like the Colorado Anti-Discrimination Act, generally regulate conduct and do not burden free-speech rights though sometimes these laws can burden free-speech rights. He further notes that “expressive conduct” can be burdened by these laws including many actions relating to the American flag. Justice Thomas found that wedding cakes communicate a message that “a wedding has occurred, a marriage has begun, and the couple should be celebrated” and further found this to be expressive conduct which Colorado could therefore not compel or restrict. He also noted that Colorado could restrict the expressive conduct if it would have punished the conduct with or without the expressive component but seeing as it would not have punished him for generally not making custom wedding cakes, that principle did not apply.

            Dissent

The single dissent in this case was written by Justice Ruth Bader Ginsburg and was joined by Justice Sonia Sotomayor. Justice Ginsburg noted that Colorado could protect gay persons, business owners cannot put up signs saying that they will not serve gay persons, and gay persons may be protected from indignities in an open market, all of which were stated by the majority opinion as well. Justice Ginsburg reconciled the disparate treatment by noting that the bakers who declined to make anti-same-sex marriage cakes did so as a result of the discriminatory message, without regard to the actual characteristics of the requesting person, whereas Phillips declined to make the cake as a result of the identity of the persons requesting the cake. Justice Ginsburg further did not agree that the statements of one or two commissioners could overcome the fact that Phillips refused to bake a cake for a same-sex couple, focusing on the procedural guarantees in Colorado which she believed were followed.

Possible Ramifications

The possible ramifications of this decision on future cases and on the public in general seem to be split along ideological lines, at least in the first weeks following the release of this decision. Some have taken it allow a wide license to discriminate, including a Tennessee business owner who put up a sign saying “No Gays Allowed” in the window of his hardware store. Others see the decision as narrow in scope (while perhaps not narrow in how many justices concurred in judgment), by explicitly stating that further disagreements would still need to be decided based on the facts of those individual cases. Others still see this as a “hollowing out” of same-sex marriage rights and allowing the first affirmation in a “slippery slope” leading to more widespread discrimination. While the ultimate impact of this case on anti-discrimination laws, free exercise of religion, and free speech remains to be seen, one thing that is certain is this is not the end of this conversation but merely the beginning.

 


Sources

Lacey Grummons, REVIEW: Masterpiece Cakeshop v. Colorado Civil Rights Commission, Syracuse L. Rev. Legal Pulse (Dec. 14, 2017).

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___ (2018).

Amy Howe, Opinion analysis: Court rules (narrowly) for baker in same-sex-wedding-cake case, SCOTUSblog (June 4, 2018, 4:07 PM).

Mark Sherman, Supreme Court sides with Colorado baker on same-sex wedding cake, Chicago Tribune, (June 4, 2018).

Ewan Palmer, No Gays Allowed’ Sign Returns to Tennessee Store Following Masterpiece Cakeshop Supreme Court Ruling, Newsweek, (June 8, 2018, 9:43 AM).

Rachel B. Tiven, Masterpiece Cakeshop Ruling Is Not As Limited As Some Might Think, Huffington Post, (June 5, 2018, 7:05 PM).

Photo courtesy of Martha Stewart.

Medicaid Covers Treatments for Non-Binary Transgender New Yorkers

Written by Cynthia Moore

 

On May 11, 2018, New York State Department of Health overturned a 2017 decision by an administrative judge, who upheld a Medicaid insurer’s denial of coverage for a mammoplasty procedure for a nonbinary transgender person. This decision affirmed the right to Medicaid coverage for surgeries or procedures for gender nonbinary and nonconforming residents of New York.

Gender Dysphoria as a Diagnosis

“Gender identity disorders” were first introduced in the DSM-III, a diagnostic manual authored by the American Psychiatric Association, as a psychosexual disorder, which later moved to a section on disorders manifested in infancy, childhood, or adolescence. In the DSM-IV, gender identity disorder diagnoses moved to the chapter on sexual and gender identity disorders. In the most current Diagnostic and Statistical Manual of Mental Disorders, the DSM-V, the diagnosis of gender identity disorder was removed and a new chapter named Gender Dysphoria was created. A diagnosis of gender dysphoria is required for Medicaid coverage of medically necessary treatments and procedures related to this diagnosis.

Non-Binary Gender Identity

Non-binary gender identities are generally those that do not exclusively fall within the male or female categories. Examples of these identities include: “genderqueer, gender fluid, agender, and bigender.” Those who identify within this spectrum may reject gender entirely, blend features of both, or fluctuate between the traditional roles of masculinity and femininity.

Statistics

In a 2016 study, the number of transgender individuals in New York was estimated as 78,600 or .51% of the total population. Nationally, the number of adults who self-identified as transgender was estimated as 1.4 million or .6% of the U.S. population. Nevertheless, population estimates are difficult to track since they have not been included on questionnaires for the census and American Community Survey. The U.S. Census Bureau stated that it does not plan to propose this topic to Congress for the 2020 Census and American Community Survey, which may make it difficult to track statistics on Americans who identify within the transgender population.

Background

In 2014, the Legal Aid Society, Sylvia Rivera Law Project, and Willkie Farr filed a federal lawsuit opposing a state regulation that banned Medicaid coverage for treatments and procedures related to sex reassignment. In July 2016, U.S. District Judge Jed Rakoff for the Southern District of New York decided Cruz v. Zucker in favor of the plaintiffs. The ban was repealed and the regulation was amended to require Medicaid to cover medically necessary procedures for those with a gender dysphoria diagnosis. New York was the ninth state to adopt a policy allowing Medicaid to cover gender affirmation surgery.

As a result of this decision, four academic medical centers—Mount Sinai, NYU Langone, Montefiore, and Northwell—created programs to perform these surgeries. In 2015, Medicaid covered 115 procedures and in 2016 it covered 257 procedures, marking a substantial increase in services provided.

Medicaid Denial of Coverage

In 2017, a 27-year-old non-binary transgender individual sought a procedure for a reduction mammoplasty. The patient’s doctor requested Medicaid coverage for the procedure and was denied by the plan, Healthfirst. The patient sought an appeal but the administrative law judge held that the regulation did not apply to non-binary individuals, requiring that the individual transition strictly from male to female or female to male.

Department of Health Overturns the Denial

In April, legal counsel who represented the plaintiff in the 2016 federal case sent a letter to the New York State Office of Attorney General stating that the fair hearing decision was decided incorrectly, since it violated the final judgement and order of Cruz v. Zucker. Two weeks later, the Department of Health amended the decision, noting that the 27-year-old met the requirements of the statute and the insurer should have approved coverage of this procedure. In its decision, the Department of Health noted:

“[r]equiring conformance to the opposite gender is inconsistent with the diagnosis of gender dysphoria as specified by the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which specifically provides that individuals with [sic] diagnosed with gender dysphoria have a marked incongruence between the gender they have been assigned to (usually at birth, referred to as “natal gender”) and their experienced or expressed gender, and experience stress about this incongruence. Experienced gender may include non-binary gender identity. Therefore, the distress associated with gender dysphoria is not limited to a desire to just be of the opposite gender, but may include a desire to be non-binary.”

Advocates noted the importance of this decision in increasing access to healthcare for non-binary and non-conforming transgender residents of New York, particularly for those who fall below the poverty line. One 2015 survey found that transgender residents of New York were more likely to experience poverty and unemployment than the general population: 37% of survey respondents were living in poverty, more than double the national poverty rate at the time of the survey and 18% were unemployed, which was three times greater than the national unemployment rate.

This decision was made three weeks after the Trump administration expressed a plan to roll back a rule issued by President Obama, which “. . . prevents doctors, hospitals and health insurance companies from discriminating against transgender people.” If President Trump were to revoke this rule, it would apply to doctors who receive Medicaid payments, hospitals that accept Medicare plans, and health insurance companies.

Sources

Andrew R. Flores et al., How Many Adults Identify as Transgender in the United States? 2­–4 (2016).

Arielle Webb et al., Non-Binary Gender Identities Fact Sheet 1 (2015).

Christina Capatides, The type of transgender you haven’t heard of, CBS News (Mar. 27, 2017).

Cruz v. Zucker, 195 F. Supp.3d 554 (S.D.N.Y. 2016).

Dan Goldberg, Transgender programs flourish following New York Medicaid coverage, Politico (Dec. 12, 2017).

Hansi Lo Wang, U.S. Census To Leave Sexual Orientation, Gender Identity Questions Off New Surveys, NPR (Mar. 29, 2017).

In Historic Decision, NYS Acknowledges Gender Non-Conforming New Yorker’s Right to Health Coverage, The Legal Aid Society: News (May 17, 2018).

In the Matter of the Appeal of Redacted, F.H. No. 7510067L (St. of N.Y. Dep’t of Health, Apr. 6, 2017).

Jan Hoffman, Estimate of U.S. Transgender Population Doubles to 1.4 Million Adults, N.Y. Times (June 30, 2016).

Kenneth J. Zucker, Management of Gender Dysphoria: A Multidisciplinary Approach, in The DSM-5 Diagnostic Criteria for Gender Dysphoria 33 (Carlo Trombetta et al. eds., 2015).

MP McQueen, NY Health Dept. Affirms Right to Medicaid Coverage for Gender Dysphoria Treatment, N.Y. L. J. (May 18, 2018).

National Center for Transgender Equality, 2015 U.S. Transgender Survey: New York State Report 1 (2017).

N.Y. Comp. Codes R. & Regs. tit. 18, § 505.2 (2018).

Robert Pear, Trump Plan Would Cut Back Health Care Protections for Transgender People, N.Y. Times (Apr. 21, 2018).

Photo courtesy of WQAD.