A new law will revise the Colorado Civil Rights Commission, after the commission gained attention when its decision in a free speech case involving a Christian cake baker was taken to the U.S. Supreme Court.
Before the Colorado law was changed, the governor was allowed to appoint all seven commission members, with no more than four being from the governor’s own party.
The new law, signed by Colorado Gov. John Hickenlooper May 22, now limits the governor to appointing three Democrats, three Republicans and one unaffiliated as commissioners. Four members must be from classes protected by law, three members must be considered workers, and three members must be serving as business owners.
The commission will now be subject to legislative audit as well. The new law says that if a commissioner has been rejected by the state senate, the governor cannot re-appoint him or her to the commission for a period of two years, the Denver Post reports.
The changes come following a February vote by Republicans on the Colorado legislature’s Joint Budget Committee to withhold funding from the commission until legislative changes were made. The commission reviews allegations of discrimination and makes policy recommendations.
Colorado’s Civil Rights Commission was involved in a case that is currently before the U.S. Supreme Court.
The case involves baker Jack Phillips of Masterpiece Cakes in the Denver suburb of Lakewood.
In 2012, Phillips was sued by a same-sex couple after he declined to make a wedding cake for them on the grounds that doing so would violate his religious beliefs. Phillips had offered to create a different cake for the couple. The couple was able to obtain a rainbow-themed cake from a bakery near Phillips’ cake shop.
Colorado law did not recognize same-sex unions as marriages at the time.
The couple took the case before the Colorado Civil Rights Commission, which ruled that by declining to make the cake, the baker had violated the state’s anti-discrimination law categorizing sexual orientation as a protected class.
In the commission’s unanimous vote against the baker, then-Commissioner Diane Rice said: “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 ... 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 use their religion to hurt others.”
The lawsuit was decided in favor of the plaintiffs in 2013, and a Colorado judge ordered Phillips to receive anti-discrimination training and to serve same-sex weddings or stop serving weddings altogether.
He chose to stop serving weddings through his bakery, which he had opened in 1993.
Phillips lost appeals at the state level, and the Colorado Supreme Court declined to take the case. In June 2017, the U.S. Supreme Court agreed to hear the case, known as Masterpiece Cakeshop v. Colorado Civil Rights Commission.
Attorneys for the baker have argued that forcing Phillips to advance a message about marriage that is contrary to his faith violates the Constitution’s protections for free speech.
In oral arguments in December 2017, U.S. Supreme Court Justice Anthony Kennedy had asked whether the commission decision could stand if at least one member based his or her decision “in significant part” on grounds of “hostility to religion.”
Kennedy appeared critical of the commission, saying, “Tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual… It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
At the same time, the justice had wondered whether a victory for the plaintiff’s argument would enable discrimination.
“It means that there’s basically an ability to boycott gay marriages,” said Kennedy, who is considered a swing vote in the case.
“If you prevail, could the bakery put a sign in its window, ‘We do not make cakes for gay weddings’?” Kennedy asked Solicitor General Noel J. Francisco. “And you would not posit that an affront to the gay community?”
Francisco, who backed Phillips’ case, suggested that the baker could say he does not make “custom-made wedding cakes for gay weddings, but most cakes would not cross that threshold.” While there are dignity interests at stake, Francisco said, and he would not minimize the same-sex couple’s dignity interests, “there are dignity interests on the other side here too.”
Phillips declines to bake other kinds of cakes that promote ideas at odds with his beliefs, such as cakes that portray anti-American, atheist, or racist messages or disparage members of the LGBT community, his attorneys said. Phillips also declines to create custom cakes for other events he is uncomfortable supporting, such as Halloween and bachelor parties.
Since the litigation started, Phillips has said that he has lost more than 40 percent of his business due to his inability to serve any weddings. As a result, he has lost nearly half of his employees, and now struggles to keep in business.
He has also received death threats and has voiced concern for the safety of family members.
The U.S. Conference of Catholic Bishops filed an amicus curiae brief on behalf of Phillips.