HIGHLIGHTS:

  • The U.S. Supreme Court on June 4, 2018, ruled 7-2 in favor of Jack Phillips, a Colorado baker who told a same-sex couple in 2012 that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages.
  • The Court acknowledged that the Masterpiece Cakeshop Ltd. et al. v. Colorado Civil Rights Commission et al. case presented "difficult questions as to the proper reconciliation" of the government's authority to enforce prohibitions on discrimination on the one hand, and the "right of all persons to exercise fundamental freedoms under the First Amendment" on the other.
  • The lessons from this case for government decision-makers are clear – decisions impacting First Amendment free exercise of religion and speech rights must never be based (explicitly or implicitly) on subjective views of the content of the speech or the specific religious beliefs at issue.

In summer 2012, Charlie Craig and Dave Mullins planned to marry in Massachusetts (a state that then recognized same-sex marriages) rather than in their home state of Colorado (which at the time did not). They also planned a reception for family and friends in Denver, at which they wanted a wedding cake. For that, they went to Masterpiece Cakeshop in Lakewood, Colo., and told its owner, Jack Phillips, that they wanted to order a cake for "our wedding."

Phillips is an expert baker and has owned the cake shop for over 24 years. He is also a devout Christian. To Phillips, creating a cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own deeply held beliefs. For this reason, he told Craig and Mullins that he did not create wedding cakes for same-sex weddings, but that he would make them birthday cakes, shower cakes, cookies and brownies.

Shortly thereafter, Craig and Mullins filed a discrimination complaint against Phillips and his cake shop, alleging that they had been denied "full and equal service" at the bakery because of their sexual orientation.

Supreme Court Analysis

In a much anticipated decision, the U.S. Supreme Court on June 4, 2018, ruled in favor of Phillips in Masterpiece Cakeshop Ltd. et al. v. Colorado Civil Rights Commission et al.

Many expected the Court to rule on whether Colorado's law prohibiting sexual orientation discrimination applied notwithstanding Phillips' First Amendment right to free exercise of religion and his free speech right not to be compelled to express a message with which he disagreed. The Court acknowledged that the case presented "difficult questions as to the proper reconciliation" of the government's authority to enforce prohibitions on discrimination on the one hand, and the "right of all persons to exercise fundamental freedoms under the First Amendment" on the other.

Yet a majority of the Court reached no definitive conclusion on how to reconcile sincerely held religious beliefs with generally applicable anti-discrimination laws, except to say that "the outcome of cases like this in other circumstances must await further elaboration in the courts."

Nevertheless, the grounds upon which the Court's 7-2 ruling in favor of Phillips was based provides a cautionary tale for government decision-makers.

Under Colorado law, the Colorado Civil Rights Commission is the body that ultimately decides cases of alleged improper discrimination. For the Court, what tipped the balance in favor of Phillips was the way in which Colorado and its Civil Rights Commission treated Phillips and his claims. The Court found that "whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission's consideration of this case was inconsistent with the State's obligation of religious neutrality."

When deciding these types of issues, the government must always utilize a process "in which religious hostility on the part of the [government] itself would not be a factor in the balance that the [government] sought to reach." The Court found that "when the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires," and thus "the Commission's actions here violated the Free Exercise Clause" of the U.S. Constitution.

The record of the Commission's consideration of the case "showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating [Phillips'] objection." Specifically, some of the commissioners made statements that 1) questioned the possibility of having any sincere religious beliefs, 2) disparaged Phillips's faith as despicable and "merely rhetorical," and 3) compared his reliance on his religious beliefs to defenses of slavery and the Holocaust. This is the statement by a commissioner that so disturbed the Court:

Freedom of 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 use their religion to hurt others.

The Court also took umbrage with the fact that not one of the other commissioners objected in any way to this statement. Likewise, the state court ruling did not call out or express any concerns with these comments. And the comments by the commissioners were not disavowed in any of the briefs filed with the Supreme Court.

Additionally, the Court found that the Commission treated Phillips' case differently than cases of other bakers who objected to a requested cake on the basis of conscience (and who, unlike Phillips, prevailed before the Commission). Specifically, in at least three other cases, the Commission found that bakers acted lawfully in refusing to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. The Court explained that "the treatment of these conscience-based objections at issue in these three cases contrasts with the Commission's treatment of Phillips' objection."

Going forward, the Court reiterated that the required governmental neutrality will be assessed based on the background of the challenged decision, the specific events leading to the enactment or policy in question, and the legislative and administrative history, "including contemporaneous statements made by members of the decisionmaking body." (emphasis added).

Based on all of this, the Court found that the Commission's treatment of Phillips' case violated Colorado's duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

The Cake Case Lessons

The lessons from this case for government decision-makers is clear – decisions impacting First Amendment free exercise of religion and speech rights must never be based (explicitly or implicitly) on subjective views of the content of the speech or the specific religious beliefs at issue. Further, one improper comment expressing hostility to a speaker's viewpoint or an applicant's religious beliefs can taint and invalidate a decision that may have otherwise withstood legal challenge. Silence in the face of such comments will be deemed acceptance, and so improper comments must be explicitly disavowed. And finally, all speakers and applicants must be treated equally and consistently, based on objective criteria.