Did the Supreme Court Kick the Cake Down the Road in Masterpiece Cakeshop, Ltd., et al. v. Colorado Civil Rights Commission?

By: Suzanne A. Singer

06.06.18

By a majority of 7–2, the Court ruled in favor of Colorado-based baker Jack Phillips, who in 2012 refused to sell to a same-sex couple a wedding cake intended for a celebration following the couple’s out-of-state marriage.[1] The Court’s decision was based on narrow grounds that were unique to the facts of the case. Individuals, business owners, and religious organizations seeking exemptions from anti-discrimination laws based on their religious views will therefore find little guidance in this opinion.

The dispute that led to the Court’s ruling began when Charlie Craig and David Mullins went to Masterpiece Cakeshop to order a cake for their upcoming wedding reception. Phillips, the owner of the bakery and a devout Christian, refused the couple’s request because creating a wedding cake for a same-sex wedding would be the equivalent to participating in a celebration that conflicted with his religious beliefs. Following the couple’s filing of a charge of discrimination with the Colorado Civil Rights Commission (“CCRC”), that state agency determined that Phillips had violated the state’s antidiscrimination laws.[2] After a Colorado court upheld that ruling, Phillips petitioned the U.S. Supreme Court.

This case could have been an opportunity for the nation’s highest court to address the right to same-sex marriage or explain just how far the government can go in regulating businesses run on religious principle. But Justice Anthony M. Kennedy’s holding that the CCRC violated the Free Exercise Clause turned instead on a narrow determination that the agency, in ruling against the baker, exhibited hostility towards Mr. Phillips’ “deep and sincere religious beliefs” based on remarks of several of the CCRC’s decision makers. 

Kennedy began the majority opinion by discussing the conflict between two important principles: on the one hand, society has recognized that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” and their rights are protected by the Constitution; on the other hand, “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” In this case, Kennedy suggested, Phillips found himself at the intersection of these two conflicts – because he regarded his craft as one in which he uses “his artistic skills to make an expressive statement,” he felt that making a cake for a same-sex couple would require him to convey a message that is inconsistent with his religious beliefs. This dilemma was further complicated by the fact that Colorado did not at the time recognize same-sex marriages and that state law afforded some latitude for individuals to decline to create specific messages they considered offensive.

Regardless of these considerations, the critical question of when and how Phillips’ right to exercise his religion could be limited had to be determined, according to Kennedy, in a neutral and unbiased setting that was not tainted by hostility towards an individual’s religious beliefs. Kennedy focused on several comments made by the agency’s decision makers regarding Phillips’ religious perspective and concluded that they were too overreaching and conclusive. For this reason, the court determined that the CCRC’s order – which required, among other things, that Phillips sell wedding cakes to same-sex couples and attend remedial training – must be set aside. Despite the narrow ruling, the majority opinion seemed to leave open the possibility that a future case could come out differently, particularly if the decision maker in the case considered religious objections neutrally and fairly. That said, the ruling likely disappoints those on either side of the ongoing debate, one that seeks to refine and define the delicate balance between freedom of religious expression and same-sex civil rights implications. Justice Ruth Bader Ginsberg dissented, joined only by Justice Sonia Sotomayor.  



[1] At the time of Mr. Phillips’ refusal, Colorado had an anti-discrimination law which prohibited sexual orientation discrimination but Colorado did not recognize same-sex marriages. 

[2] Phillips raised two arguments: one, requiring him to create a cake for a same-sex wedding would violate his First Amendment to free speech by compelling him to exercise his artistic talents, and two, it would also violate his right to the free exercise of religion. 

 
 
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