Religious Freedom Narrowly Protected 7-2: Baker Does Not Have to Make Cake for Same-Sex Couple

“Shouldn’t we all agree that the government shouldn’t force us to speak or act in a way that violates our deepest convictions?” baker Jack Phillips asked. Mr. Phillips, a Christian and a baker, declined to make a wedding cake for a same- sex couple, citing his religious beliefs. Instead of finding a baker who wanted their business, they sued him. Phillips lost battle after battle all along the hard road to the Supreme Court, where he prevailed today.

Despite a narrow ruling, and the prospect that this issue will be back before the Court soon, this is a great day for America; unlike so many other areas of the law, our First Amendment jurisprudence remain strong. We want to commend our friends at Alliance Defending Freedom, who represented Mr. Phillips and all of us who agree that we should not be forced to violate our deeply held religious beliefs.

So why is this a “narrow” victory if the Court ruled 7-2? Why did The Wall Street Journal call it a “half-baked cake?”

The opinion, written by Justice Kennedy, was not a full-on defense of religious freedom. Justice Kennedy, often a swing-vote on the Court, wrote the controversial opinion in the 2015 Obergefell landmark case in which the Supreme Court established same-sex marriage throughout the United States and its territories, making it a civil right. That case effectively ended the legislative effort by citizens and states to preserve the state’s legal recognition of marriage as between one woman and one man. He affirmed support for gay rights as a civil right  in today’s opinion. So why did the baker win, with Kagan and Breyer joining the majority?

“The neutral and respectful consideration to which Phillips was entitled was compromised here,” Justice Kennedy wrote. “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”

The Court today did not say that a baker (or candlestick maker) could under all circumstances refuse on religious liberty grounds to provide goods or services to a potential customer. A baker selling goods and services “might have his right to the free exercise of religion limited by generally applicable laws.” Colorado has a state law, the Colorado Anti-Discrimination Act, that forbids discrimination on the basis of sexual orientation but it was not the law of Colorado when Mr. Phillips refused to bake a cake for the plaintiffs wedding.

The Court did say, as noted above, that the State of Colorado violated its duty to act as a neutral decision maker, and that Colorado violated the Constitution by acting out of hostility to the baker’s deeply held religious beliefs, showing bias in favor of the same-sex couple:

Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. (emphasis added)

The Court’s ruling, however narrow and focused on the anti-religous fervor of Colorado’s guardians of “civil rights”, should discourage the aggressive wing of the gay rights movement (LGBTQ et. al.) from setting up these cases and winning through the courts what it cannot win legislatively. But it won’t discourage them at all. Next time, they will be better at hiding their hostility, and bias. Expect them to come at this again, and again, until the Court rules firmly for religious freedom.

Despite the half-backed opinion, we are encouraged as we await the decision in Janus v Afscme, another First Amendment case where the Court has been asked to restore the full right of speech and freedom of association to all public employees by ruling that they cannot be forced to fund union activities in order to keep their job. Justice Neil Gorsuch, whose support for Janus has been a matter of  speculation, argued that the Court should have ruled for Jack Phillips on grounds of religious liberty. That is a good sign.


KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, ALITO, KAGAN, and GORSUCH, JJ., joined. KAGAN, J., filed a concurring opinion, in which BREYER, J., joined. GORSUCH, J., filed a concurring opinion, in which ALITO, J., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined.

GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.

Here is the thinking of the majority, but the Court’s members had other thoughts. You can read the full opinion here.

Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and operated by Jack Phillips, an expert baker and devout Christian. In 2012 he told a same-sex couple that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages—marriages that Colorado did not then recognize—but that he would sell them other baked goods, e.g., birthday cakes. The couple filed a charge with the Colorado Civil Rights Commission (Commission) pursuant to the Colorado Anti-Discrimination Act (CADA), which prohibits, as relevant here, discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.”

Under CADA’s administrative review system, the Colorado Civil Rights Division first found probable cause for a violation and referred the case to the Commission. The Commission then referred the case for a formal hearing before a state Administrative Law Judge (ALJ), who ruled in the couple’s favor. In so doing, the ALJ rejected Phillips’ First Amendment claims: that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed and would violate his right to the free exercise of religion. Both the Commission and the Colorado Court of Appeals affirmed. Held: The Commission’s actions in this case violated the Free Exercise Clause. Pp. 9–18. (a) The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. See Obergefell v. Hodges, 576 U. S. ___, ___.

While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion. To Phillips, his claim that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. His dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages performed in the State and before this Court issued United States v. Windsor, 570 U. S. 744, or Obergefell.

Given the State’s position at the time, there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case. Pp. 9–12. (b) That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.

As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. Another indication of hostility is the different treatment of Phillips’ case and the cases of other bakers with objections to anti-gay messages who prevailed before the Commission.

The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips’ willingness to do the same irrelevant. The State Court of Cite as: 584 U. S. ____ (2018) 3 Syllabus Appeals’ brief discussion of this disparity of treatment does not answer Phillips’ concern that the State’s practice was to disfavor the religious basis of his objection. Pp. 12–16. (c) For these reasons, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520.

Factors relevant to the assessment of governmental neutrality include “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decision making body.” Id., at 540. In view of these factors, the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of his religious beliefs. The Commission gave “every appearance,” id., at 545, of adjudicating his religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it, id., at 537, but government has no role in expressing or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate. The inference here is thus that Phillips’ religious objection was not considered with the neutrality required by the Free Exercise Clause. The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. But the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. Pp. 16–18. 370 P. 3d 272, reversed.