The U.S. Supreme Court, in a 7-to-2 decision, overturned a Colorado public accommodation sexual orientation discrimination case that found that a Lakewood baker who refused to make a wedding cake for a gay couple violated the Colorado Anti-Discrimination Act (CADA). It did so narrowly, ruling that the Colorado Civil Rights Commission (CCRC) violated the Free Exercise Clause because of the CCRC’s hostility toward the baker’s religious beliefs, requiring that its order be set aside. The Court did not, however, rule on the more difficult issues related to whether a baker’s refusal to provide services to a same-sex couple based on religious grounds is constitutional.
Baker Argued Two Constitutional Claims
Jack Phillips, an expert baker and devout Christian, owns and operates Masterpiece Cakeshop, Ltd. in Lakewood, Colorado. In 2012, Charlie Craig and Dave Mullins entered the bakery to order a custom cake for their wedding celebration. Phillips told the couple that he did not create wedding cakes for same-sex weddings but he would sell them birthday cakes, cookies, brownies, or other baked goods—anything he had in the store that wasn’t designed to celebrate a wedding. The couple left the shop and later filed a sexual orientation discrimination complaint against Masterpiece Cakeshop and Phillips.
The Colorado Civil Rights Division investigated the complaint and found that on at least six occasions, Phillips had refused to sell custom wedding cakes to same-sex couples to celebrate same-sex weddings. The Division found probable cause to believe that Phillips violated CADA, which prohibits discrimination in places of public accommodation because of sexual orientation and other protected characteristics. The complaint was referred to the CCRC, which ordered a state administrative law judge (ALJ) to conduct a formal hearing. The ALJ ruled that Phillips’s actions constituted prohibited discrimination, and the CCRC affirmed the ALJ’s decision in full. Phillips appealed to the Colorado Court of Appeals, which also affirmed.
Phillips argued that applying CADA to require him to create a wedding cake for a same-sex wedding violated his constitutional First Amendment rights. He asserted that his right to free speech would be violated by compelling him to create a cake using his artistic talents to express a message with which he disagreed. He also argued that his right to the free exercise of religion would be violated were he forced to create cakes for same-sex weddings when his religious beliefs hold that marriage should be between one man and one woman. Phillips focused on the narrow issue that his use of his artistic skills to make an expressive statement in a custom wedding cake would have a significant First Amendment speech component and implicate his deep and sincere religious beliefs.
SCOTUS Sees Both Sides
The Supreme Court pointed to its 2015 decision in Obergefell v. Hodges, which recognized same-sex marriages, to state that the First Amendment ensures that religious organizations and persons are provided proper protection to teach the principles that are central to their lives and faiths. However, the Court also stated that those religious and philosophical objections do not allow business owners and others in our economy and society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.
CCRC Was Not Neutral to Baker’s Religion
The Court ruled that the CCRC did not apply Colorado’s anti-discrimination laws in a neutral way that was respectful of Phillips’s religious beliefs. It therefore ruled that the CCRC’s actions violated the Free Exercise Clause of the First Amendment. The Court found that the CCRC showed hostility toward Phillips’s religious beliefs. During the CCRC’s formal public hearings, one commissioner suggested that Phillips can believe “what he wants to believe,” but that he could not act on his religious beliefs when he decides to do business in the state. Another commissioner stated that religious liberty had been used throughout history to justify all kinds of atrocities, including slavery and the holocaust—a statement that was both factually and historically inaccurate. The same commissioner further stated, “[i]t is one of the most despicable pieces of rhetoric that people can use to-to use their religion to hurt others.”
The Court determined that the statements and sentiments expressed by the commissioners were inappropriate and violated the requirement that the state agency enforce its laws in a neutral manner. The Court also pointed to the commissioners’ hostility towards Phillips by noting that other bakers had objected to requested cakes based on their conscience (by refusing to create cakes that opposed same-sex weddings) and had prevailed before the CCRC. For the bakers, the CCRC found it exonerating that they were willing to sell non-custom baked cooks to customers opposed to same-sex weddings. Yet in Phillips’s case, they ignored the fact that he had been willing to sell any other baked goods to the gay couple. The Court concluded that the Commission’s treatment of Phillips’s case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.
Numerous Concurrences and a Dissent
Seven justices joined in the Court’s opinion to rule in favor of the baker on the narrow grounds that the CCRC did not satisfy its obligation to consider the baker’s religious views in a neutral and respectful manner. But numerous justices, including Justices Kagan, Gorsuch, and Thomas, wrote separate concurrences to make additional points. Justice Ginsburg, joined by Justice Sotomayor, wrote a dissent, stating that the ruling should have been in favor of the same-sex couple.
Trickiest Issues Must Wait for Another Day
By deciding the case based on the actions of the CCRC, the Court sidestepped the trickier issues related to whether a baker (or any artistic service provider) may refuse to provide same-sex couples with goods or services based on their religious beliefs under the First Amendment. The seven-justice majority seems to suggest that the details of the refusal would matter. For example, the Court suggested that whether the cake includes words or images celebrating the marriage, or whether the baker refuses to attend the wedding to ensure that the cake is cut the right way, could be some of the endless factors that would need to be considered when deciding whether a baker’s creation and/or actions can be protected on religious grounds. Still, it remains to be seen just how much precedential value the case holds. That will be determined most by how judges in the future apply it.