In the end, a store owner open to the public is allowed to have a religious opinion; however, he cannot use that religious opinion as a basis of discrimination. That is the main takeaway from Masterpiece Cakeshop v. Colorado Civil Rights Commission. In the end, a majority of judges issued a very narrow ruling in favor of Jack Phillips, the owner of Masterpiece—but it is clear by the bulk of majority opinions that religion cannot be used as a basis to discriminate. In some ways, the majority ruling can be viewed as a victory for gay rights.
In Masterpiece, Jack Phillips, the owner of a bakeshop in Lakewood, Colorado, specializes in baking wedding cakes. Phillips is also a religious Christian. At trial he testified that his religious beliefs were a main reason that he opened his shop. It was because he wanted to participate in marriages, which he considers a religious activity ordained by God. Phillips believes that decorating cakes is a form of art through which he can honor God and that it would displease God to create cakes for same-sex marriages.
In 2012, Charlie Craig and David Mullins entered Masterpiece in order to purchase a cake to celebrate their upcoming wedding. Craig and Mullins said they were unaware of Phillips’ religious beliefs when they entered the shop but he soon disclosed to the couple that he was a devout Christian, and because of that, he was not willing to design custom cakes that conflict with his religious beliefs.
Phillips testified that he was not discriminating against Craig and Mullins because they are gay. In fact, he never refused to sell them a cake in the store. He said that they could purchase any cake he had displayed and decorate it themselves as they desired. He further testified that he offered to provide the couple with referrals to other bakers that would accommodate them. Phillips said that Craig and Mullins declined his offer.
Instead, what the couple did is file a discrimination complaint with the Colorado Civil Rights Commission. The commission found “probable cause” of discrimination and the matter was taken to a state court, which ruled that Masterpiece was liable for its conduct. Further, the court ruled that if the bake shop makes cakes for opposite-sex weddings, under state and federal law, Phillips must make cakes for same-sex weddings too. Phillips then appealed to the Supreme Court contending that Colorado’s anti-discrimination laws are unconstitutional because they violate Phillips’ First Amendment rights regarding religion and free expression.
In Justice Kennedy’s Supreme Court opinion, the majority found 7-2 in favor of the bakery.
Discriminatory intent is emphasized in this finding against the Colorado Commission. Kennedy wrote that Phillips did not receive neutral treatment from the commission, which showed “clear and impermissible hostility toward his religious beliefs.” The Court explained that commissioners’ comments disparaging Phillips’ beliefs and characterizing them as rhetorical were inappropriate. Phillips “was entitled to a neutral decision maker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered and decided.” Because he did not have such a proceeding, the court concluded, the commission’s order, among other things, requiring Phillips to sell same-sex couples wedding cakes or anything else that he would sell to opposite-sex couples and mandated remedial training and compliance reports—“must be set aside.”
So, it was the clear antagonism of Colorado’s commission that Phillips did not get a fair hearing that foretold the result.
However, this is where this decision might actually end up being a win for gay rights. Kennedy asserted and amplified the Court’s holding under Obergefell: a decision where the Supreme Court first affirmed that gays are entitled to marriage as a matter of equal protection.
The majority made sure to reassert that principle: “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. But, Kennedy added, those rights “must be balanced against religious and philosophical objections to gay marriage, which are protected views and in some instances protected forms of expression.”
What becomes clear is, in a nutshell, Phillips wins because Colorado discriminated against his religious beliefs. That is the key component. Colorado concluded that expression of religion, in itself, is bigotry and under the First Amendment that is not allowed.
It is a delicate balance. The decision reviewed one example where one commissioner “even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” That is showing that the Commission did not treat Phillips’ beliefs “neutrally and fairly.” In the end, religion cannot be used as an excuse to discriminate, but neither can it be disregarded. In other words—all people must be treated equally—including religious people.
Justice Kagan filed a concurring opinion, joined by Justice Breyer, in which she agreed with the majority that the Commission had not given neutral treatment to Phillips’ religious views. However, she emphasized that it is only on procedural grounds that they were joining the majority. Kagan and Breyer believed that the commission did not act unlawfully in finding that religion can lead to discrimination. As an example, they suggested that a baker who writes anti-gay statements on a cake and argues that he did so due to his religious beliefs could lawfully be punished.
Justice Gorsuch and Justice Alito also concurred but wrote an opinion seemingly targeting Kagan and Breyer. Gorsuch and Alito opined that all religious expression is protected under the First Amendment and the main issue is the Colorado Commission’s animus. Gorsuch and Alito said that even if a baker writes anti-gay slogans in furtherance of his religious belief, it should be entitled to legal protection.
Justice Thomas wrote a concurring opinion in which he concluded that the Court got the issue wrong and that Commission treatment of religion is not the key issue in the case. Thomas said the First Amendment violation is much more fundamental than that: In Thomas’ view, Phillips’ creation of custom wedding cakes is exactly the kind of “expressive” conduct protected by the First Amendment. Requiring Phillips to make such cakes for same-sex marriage, even when it will convey a message that “he believes his faith forbids,” violates his rights. Period.
Justice Ginsburg, joined by Justice Sotomayor, filed a dissent in opposition. Ginsburg’s main point of contention is that gays should have full rights just as anyone else does and from their perspective, Craig and Mullins were not discriminated against because of religion, but because they are gay. Ginsburg argues that even if the couple had asked for a cake including Biblical verses that conformed to Phillips’ religious beliefs, he still would not have sold them a cake. The fact that Phillips might sell other cakes and cookies to gay and lesbian customers was irrelevant to the issue Craig and Mullins’ case presented. What matters is that Phillips would not provide the same service to a same-sex couple that he would to a heterosexual couple.
By Stephen Loeb
Stephen R. Loeb heads the Law Office of Stephen R. Loeb, a civil practice in New Jersey and New York. He can be reached at [email protected].
