Notice & Comment

A Lemon Cake: Ascribing Religious Motivation in Administrative Adjudications — A Comment on Masterpiece Cakeshop (Part II)

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018 WL 2465172 (June 4, 2018), the U.S. Supreme Court invalidated a Colorado Civil Right Commission decision requiring a bakery to sell a cake in connection with a same-sex couple’s wedding reception, despite the owner’s religious opposition to same-sex marriage.  It held that unconstitutionally anti-religious bias infected the Commission’s decision.

This second of three posts regarding the Court’s resolution of the case builds on the first.  In that post I discussed caselaw regarding invalidation of legislative acts based on their lack of secular purpose, and drew a contrast between the legislative and administrative contexts.  This post focuses on the Court’s conclusion that the statements of two Commissioners exhibited a degree of bias that required invalidation of the Commission’s decision.  I will first discuss Masterpiece Cakeshop’s failure to exhaust administrative remedies on the bias question, and then explore whether the particular statements made by Commission members warranted the Court’s action.

The “Offending Statements”

In his opinion for the Court, Justice Kennedy focused on three statements made during the Commission’s deliberations.  Id. at *9.  Commissioner Raju Jairam, made two of the comments at the Commission’s May 30, 2014 discussion of the ALJ’s determination; Commissioner Heidi Hess made the third at the conclusion of the July 25, 2014 hearing on Masterpiece Cakeshop’s request for a stay pending appeal.  The full transcripts of both Commission meetings, as well as the proceedings before the ALJ, are available at (They can also be accessed from the Colorado Division of Civil Rights page devoted to the Masterpiece Cakeshop case, (last accessed June 16, 2018.)    The May 30 Commission proceedings run from page 877 to 919; the July 25 proceedings run from page 921 to 932.  I also cite to the excerpted and re-typed versions of the transcripts in the “Appendix” to the certiorari petition (hereinafter “App.”), accessible at, and the “Joint Appendix” submitted in connection with the merits briefing (hereinafter “JA”), accessible on Westlaw, 2017 WL 4232758.

The three offending statements are below, with a bit more context than provided in Justice Kennedy’s opinion.  The first statement Commissioner Jairum made during the merits hearing was as follows:

I don’t think the act necessarily prevents Mr. Phillips from believing what he wants to believe. And — but if he decides 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. [Tr. 900-901; JA 205 (emphasis added)] (the “doing business” statement)

In context, the statement was focused on Phillips’ free speech claim, not his free exercise claim.  Commissioner Jairum made other statements of similar effect. [Tr. 896; JA 202 (Jairum)](“any person that chooses to do business in the state . .  has to recognize that they have to conduct business in an ethical and law-abiding way”); [Tr. 897: JA 202 (Jairum)](“if I’m going to do business here, then I’d better not discriminate”).  However, again, each was made during the discussion of Phillips’ free speech claim. Commissioner Jairum’s second “offending” statement was as follows:

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 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. [Tr. 906-907; JA 207 (emphasis added).] (the “compromise” statement).

Commissioner Jairum was identified in the official minutes of the meeting as having made the motion to adopt the ALJ’s decision.  Public Session Minutes, Colorado Commission on Civil Rights, May 30, 2014 at 3, accessible at   Commissioner Hess’ statement at the conclusion of the discussion of the motion for a stay pending appeal was as follows:

I would also like to reiterate what we said in the hearing or 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. So that’s just my personal point of view. [Tr. 931-32; App. 116.]

Commissioner Hess neither moved nor seconded the motion to deny the stay.  Public Session Minutes, Colorado Commission on Civil Rights, July 25, 2014 at 2, accessible at

Failure to Exhaust Administrative Remedies

Jack Phillips’ lawyer herself did not object to any of the three “offending” statements during the proceeding and never sought any Commissioner’s recusal.  That failure to exhaust administrative remedies would ordinarily preclude challenging the Commission’s ruling on the grounds of Commissioner bias. 

In administrative adjudication, unlike in the legislative process, individuals possess a “due process” right to notice and a hearing.  Minnesota State Bd. of Community Colleges v. Knight, 465 U.S. 271, 283-84 (1984); Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915).  Like the federal Administrative Procedure Act, the Colorado Administrative Procedure Act provides a mechanism for challenging the bias of commission members in the context of trial-type proceedings.  Colo. Rev. Stat. §24-4-105; see also, 5 U.S.C. §556(b)(3).  In particular,

“Upon the filing in good faith by a party of a timely and sufficient affidavit of personal bias of an administrative law judge or a hearing officer or a member of the agency or the agency, the administrative law judge, hearing officer, or agency shall forthwith rule upon the allegations in such affidavit as part of the record in the case.”

There may well be fewer options for formally seeking recusal of “biased” legislators.  Enforcement of conflict-of-interest rules may lay within the exclusive province of legislative bodies of the state or territory’s ethics commission.  Nev. Rev. Stat. Ann. §281A.420(7) (exclusive jurisdiction of legislative chamber); N.J. Stat. Ann. 52:13D-22(j)(same); Olive v. deJongh, 2012 WL 3313082, *8-*10 (V.I. Super. 2012)(no private right of action to enforce conflict-of interest requirements).  And indeed, the standards for bias applicable to legislators are more generally largely limited to their financial or familial interests, rather than any viewpoint “bias.”  See, Nevada Comm’n on Ethics v. Carrigan, 564 U.S. 117, 124 (2011) (“[t]here are of course differences between a legislator’s vote and a judge’s, and thus between legislative and judicial recusal rules”); id. at 132 (Kennedy, J.) (distinguishing recusal standards in legislative and judicial settings); see generally, National Conference of State Legislatures, 50 State Table: Voting Recusal Provisions (Jan. 25. 2018), accessible at, (last accessed June 16, 2018)(listing recusal provisions for each state).

Masterpiece Cakeshop asserted a claim of bias for the first time in its briefs to the Colorado Court of Appeals.  And even at that point, it identified only Commissioner Hess’ statement, made during the July 25, 2014 stay proceedings, as the basis for unconstitutional bias.  Appellants’ Opening Brief at 26, Craig v. Masterpiece Cakeshop, 370 P.3d 272 (2015), accessible at, 2015 WL 13622550; Appellants’ Reply Brief at 14-15, accessible at, 2015 WL 13622552.  Had a recusal motion been made, further facts might have developed —Commissioners Jairum and Hess would have had an opportunity to explain their determination on recusal or provided a context for their statements.  While constitutional claims, such as challenges to the validity of the statute an agency administers, need not necessarily be exhausted, 2 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE §15.5 (4th ed. 2002) (“ADMINISTRATIVE LAW TREATISE”), claims of personal bias that disqualify one or more members of an administrative tribunal should not be excused from the exhaustion requirements.

Commissioners’ Expression of Disqualifying Bias   

General Standards 

The law of recusal is complex, though generally challenges for bias are unsuccessful, both in the administrative and judicial contexts.  See, 2 ADMINISTRATIVE LAW TREATISE at §9.8; 2 CHARLES H. KOCH & RICHARD MURPHY, ADMINISTRATIVE LAW & PRACTICE § 6:10 (3d ed. 2015)(“KOCH & MURPHY”).  In the leading case on recusal in administrative adjudication, Cinderella Career & Finishing Schools, Inc. v. FTC, 425 F.2d 583 (1970) (“Cinderella II”), the D.C. Circuit held that recusal is appropriate when “a disinterested observer may conclude that (the agency) has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.” Id. at 591 (citing Gilligan, Will & Co. v. SEC, 267 F.2d 461, 469 (2d Cir.), cert. denied, 361 U.S. 896 (1959)). The recusal standard for rulemaking is significantly more generous.  In Association of National Advertisers, Inc. v. FTC, 627 F.2d 1151 (D.C. Cir. 1979), cert. denied, 447 U.S. 921 (1980), the D.C. Circuit held that disqualification is appropriate “only when there has been a clear and convincing showing that the agency member has an unalterably closed mind on matters critical to the disposition of the proceeding.” Id. at 1154, 1169-70 (emphasis added).  Interestingly, in that case as in this one (at least with respect to Commissioner Hess’ statement), the Commissioner’s offending statements dealt with the nature of what constitutes “injury” or “harm.”  Id. at 1172 (noting that FTC Commissioner Pertschuk’s statements merely showed his belief that “children may be ‘injured’ by the advertising of highly sugared products”).

Moreover, members of multi-member boards and others with the power to render final adjudicatory decisions need not be free from “an underlying philosophy in approaching a specific case.”  U.S. v. Morgan, 313 U.S. 409, 421 (1941).  Indeed, they might be expected to approach matters that come before them with a perspective in line with the agency’s mission, in this case ensuring the availability of public accommodations to all.  Texaco, Inc. v. F.T.C., 336 F.2d 754, 764 (D.C. Cir. 1964) (“[w]e do not expect a Trade Commissioner to be neutral on anti-monopoly policies.”), vacated and remanded, 381 U.S. 739 (1965); 2 KOCH & MURPHY, at § 6:10 (“That an official has a philosophy in tune with their appointed function is an asset not a defect.”).  Statements regarding the inconsistency of religiously based claims like Phillips’ with the goal of public accommodations law do not exhibit bias.  For example, one Commissioner observed “I think that’s the gist of it, right, is this idea that — you know, that’s why the law is here, because discrimination is harmful, right? And our job is to try to eradicate that.” [Tr. 897; JA 202 (Katina Banks, Chair).]

Of course, much of the above doctrine focuses on pre-judgment of cases, statements made or positions taken before an adjudicatory proceeding has commenced.  United States v. Likety, 510 U.S. 540 (1994), deals with allegations of bias based on assertions made during adjudicatory proceedings.  The case involved Article III judges.  There, the Court observed:

opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.

Id. at 555 (emphasis added).  Ironically, in Likety, Justice Kennedy advocated a more stringent approach, id. at 562-65 (Kennedy, J., concurring).

Analysis of Bias of Colorado Civil Rights Commission

The alleged bias in Masterpiece Cakeshop related to a legal issue or a policy issue having little to do with Commission members’ views of the sincerity of Phillips’ religious beliefs.  Indeed, the ALJ found that Phillips’ religious beliefs were sincere and formed the basis of his refusal to sell wedding cakes to same-sex couples.  [App. 70.]  In affirming the ALJ’s decision the Commission did not disturb that finding.  Employment Division v. Smith holds that accommodation of religion by providing exemptions from generally applicable rules is within the purview of the executive and legislative branches.  494 U.S. at 890.  As the Court explained: “[v]alues that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. . . a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.”  Id.

It is not even clear that under Colorado law the Commission, as opposed to the state legislature, could grant religious exemptions not compelled by the federal or state constitutions.  Nothing in Colo. Rev. Stat. §24-34-601(2) suggests that the Commission possessed the discretionary authority to exempt religious adherents from generally-applicable obligations borne by others.  If the Commission possessed such authority, in Craig v. Masterpiece Cakeshop the Commission was, at most, deciding whether the religious claims of those who wished to refuse to provide services for same-sex weddings cut too deeply into the purposes of generally applicable public accommodations laws — a policy question not a question of adjudicatory fact.  The sincerity or distinctive nature of Phillips’ beliefs were irrelevant, and the Commission, like the ALJ, appeared to treat them in just that way, as Employment Division v. Smith requires, 494 U.S. at 886-87 (“[r]epeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.”).

Justice Kennedy’s opinion for the Court itself acknowledges that the “doing business” and “compromise” statements, the two made at the hearing on the merits, were ambiguous.  Masterpiece Cakeshop at *9.  Indeed, when read in context, the “compromise” statement was an attempt to summarize Justice Bosson’s concurring opinion in Elane Photography v. Willock, 309 P.3d 53 (N. Mex. 2013), cert. denied, 134 S. Ct. 1787 (2014), a New Mexico Supreme Court decision, which the U.S. Supreme Court had refused to take up on certiorari.  Justice Bossson’s opinion uses that exact word, “compromise,” three times.  Id. at 79-80.    (Commissioner Jairum had already concluded, based on her review of the record and the ALJ’s decision, that Phillips’ claims to the Commission that he was willing to sell baked goods, just not wedding cakes, specious, because it contradicted the evidence. Tr. 906 (Jairum)(incorrectly transcribing “specious” as “speechless”).  While harsh, that was perfectly permissible under Likety.)  As noted earlier, in its opening brief and reply briefs to the Colorado Court of Appeals, Masterpiece Cakeshop did not even mention the May 30, 2014 hearing statements as ones indicating bias.

Commissioner Hess’ statement in connection with the stay motion was provocative, analogizing carelessly to the Holocaust generally is.  But the statement was not one designed to take a position on religious belief or doctrine.  The statement focused upon secular concerns within the Commission’s distinct purview that result from the claims made by some religious adherents, namely that pervasive refusals of service rendered some persons “second class” citizens.  The Hess statement references the May 30, 2014 discussion.  While the reference is imprecise, it most likely refers to the two statements regarding refusal of public accommodations causing “hurt” or being “hurtful” or “harmful.” [Tr. 897; JA 202] (“I think that’s the gist of it, right, is this idea that — you know, that’s why the law is here, because discrimination is harmful, right?  And our job is to try to eradicate that”) [Tr. 907]; JA 203.] (“It’s, like, you can have your beliefs, but you can’t hurt other people at the same time.”)  Neither statement denigrates religion.  And the discussion referenced discrimination against interracial couples (Tr. 892-93; JA 198-99) and signs about refusing to serve certain segments of the population (Tr. 898; JA 203).

And, in any event, the concept that religion has been used to justify oppression is hardly illegitimate.  Marci A. Hamilton has observed:

“Simply scanning contemporary headlines or history books makes abundantly clear that religion is as often the source as it is the recipient of oppression. This reality is acknowledged and honored in the common sense views of the Framers, especially James Madison.”

Marci A. Hamilton, The Constitution’s Pragmatic Balance Of Power Between Church And State, 2-Fall NEXUS: A JOURNAL OF OPINION 33, 35 (1997).  Similarly Jane Rutherford has noted:

“the government grants discriminatory religious organizations the power to perpetuate subordination[;] [s]tatutes, regulations, and cases that enable religious organizations to discriminate operate to combine the power of church and state to limit the opportunities of the least powerful: the aged, the disabled, women, and minorities.”

Jane Rutherford, Equality As The Primary Constitutional Value: The Case For Applying Employment Discrimination Laws To Religion, 81 CORNELL L. REV 1049, 1057-58 (1996); accord, Nicholas Kristoff, Religion and Women, N.Y. TIMES (Jan. 10, 2010)(discussing many religious faiths’ “oppression of women”); see generally, John Lennon, Imagine (Apple Records Oct. 1971)(“Imagine there’s no countries/It isn’t hard to do/Nothing to kill or die for/ and no religion too”)(emphasis added).   Making a statement such as that offered by Commissioner Hess disqualifying would exclude from the debate over reconciling religious practice and generally applicable laws anyone who believes that religion has sometimes led to oppression and been used to justify harming other people, a rather extreme view of disqualifying bias.

Note also that the statement was made after Commission members had a justification rooted in the proceedings to be a bit testy.  The Hess statement was made at the hearing regarding a stay request.  And at least one unidentified Commissioner at the stay proceeding noted that Masterpiece Cakeshop had engaged in “endless argument”  and complained about having to “repeat over and over” that Phillips had discriminated on the basis of sexual orientation because a same-sex couple’s sexual orientation cannot be view as distinct from their desire to celebrate their union.  [Tr. 929.]

And just as significantly, the Hess statement, made at the end of the meeting to consider stay of the final order, came after the Commission rendered its initial decision and after the Commissioner’s had already indicated their unanimous, and unsurprising, decision to deny the stay.  [Tr. 926-932.] In short, Commissioner Hess’ extemporaneous statement, while an inartful one that could easily lead to offense, was hardly sufficient to justify her own recusal, much less ascribing any illicit motive to the other Commissioners.

Justice Kennedy notes that other Commission members did not disavow any of the offending statements, presumably analogizing to Wallace v. Jaffree, 472 U.S. 38 (1985), where the Court noted that primary legislative sponsor inserted, without objection, a statement in the legislative record asserting that “the legislation was an ‘effort to return voluntary prayer’ to the public schools.”  Id. at 56-57, 60.  But in a context in which statements by a collegial body are particularly important, given that legislatures unlike administrative agencies do not provide opinions supporting their action, there is arguably a greater obligation for other legislators to contest a sponsor’s “public justification” for the statute.  See, Bernard W. Bell, Legislative History Without Legislative Intent: The Public Justification Approach to Statutory Interpretation, 60 OHIO L. REV. 1, 76-83 (1999).  In the administrative context, it is not clear how disavowal of one member’s statements by other members of a collegial administrative body could cure allegations of biased decision-making.  And note, no member adopted or expressed approval of the comment.

Indeed, perhaps Commission members did not expressly disavow the statements Justice Kennedy identified, perhaps because they interpreted them more innocently than did Justice Kennedy.  In any event, the Commissioners did show sensitivity to religious beliefs during their May 30, 2014 consideration of the claims against Masterpiece Cakeshop.  The Commissioners noted that the case would be different if a religious adherent was not selling his wares commercially, such as at a fair set up in a parking lot.  It also suggested that sales by those devoted solely to a religious clientele might warrant different treatment.  [Tr. 895, 899-900; JA 200-201, 204.]  The Chairperson even suggested that business owners could put up a sign stating that they were opposed to same-sex marriage.  [Tr. 897; JA 202-203.]  And indeed, the Commission’s mission includes rectifying denials of public accommodations to religious adherents.  State of Colorado Civil Rights Commission Rule 10.2(H) (JA 307), 50.1 accessible at,

In his opinion for the Court in Masterpiece Cakeshop, Justice Kennedy himself acknowledges the difficulty of reconciling the claims of religious adherents with the need to ensure equal access to public accommodations relating to wedding services regardless of sexual preference.  Masterpiece Cakeshop, at *7-*8.  He admonished courts, a presumably bodies like the Colorado Civil Rights Commission, to resolve such disputes “with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”  Id. at 13.  Viewing the record of the Commission’s deliberations as a whole, Colo. Rev. Stat. §24-4-106(7), 5 U.S.C. §706, rather than scrutinizing highly selected snippets of the Commission’s discussions, shows that the Commission did just as Justice Kennedy suggested.  Namely, the Commission treated the issue before it seriously, and accorded all parties before it with respect.

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