U.S. Supreme Court Rules for Colorado Baker: Answering Questions About the Masterpiece Cakeshop Case

This month, the U.S. Supreme Court issued its opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The case was closely watched, particularly because the High Court could have answered some tough questions about religious liberty, freedom of speech, and anti-discrimination laws protecting LGBT rights. The Court’s opinion, however, dodged some of the harder questions, but gave a victory to Jack Phillips, the Colorado baker. Here, we answer some common questions about the case.

What was the case about again?

Back in 2012, Jack Phillips, the owner of Masterpiece Cakeshop, was visited in his shop by a couple who asked Phillips to create a cake celebrating their wedding. Phillips declined, noting that he did not create cakes for same-sex weddings on the ground that doing so would violate his sincerely held religious beliefs about marriage. He offered to sell the couple other goods, but not a wedding cake. The couple later brought suit against Phillips for discrimination.

How did the couple sue the baker for refusing to create a wedding cake?

Colorado law provided the couple here with the right to make a legal complaint about the refusal of service. The couple brought a discrimination complaint to the Colorado Civil Rights Division (CCRD), claiming a violation of Colorado’s public accommodation laws. Most states have public accommodation laws, which generally provide that when people or businesses sell goods and services to the public, they must do so without regard to certain protected characteristics of the customer. Most states protect traits like race or color. In Colorado, sexual orientation is a protected characteristic (this is not the case in all parts of the country).

The Colorado enforcement agency and courts have interpreted the refusal to provide a cake for a same-sex wedding as equivalent to refusing to provide goods/services based on sexual orientation (rather than as a disagreement with the concept of same-sex marriage), on the theory that, for the most part, those seeking a cake for a same-sex wedding will be LGBT, and that disagreeing with same-sex weddings implies disagreement with the whole LGBT lifestyle, which implies discrimination against LGBT persons.

What happened before the case got to the Supreme Court?

The baker lost at every level. The CCRD found a violation of the state’s public accommodation law and referred the case to a seven-member panel called the Colorado Civil Rights Commission, which in turn, sent the case to an ALJ for a formal hearing. The ALJ sided with the couple and the CCRD, and the Commission affirmed that decision in full. As would become important to the U.S. Supreme Court’s ultimate decision, several Commission members expressed disdain for Mr. Phillips’s beliefs. Most notably, one member commented during a public hearing about Phillips’s case as follows:

Freedom of religion and 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—to use their religion to hurt others.¹

Meanwhile, the Commission was also hearing a series of cases involving another individual, William Jack, who had unsuccessfully attempted to have several bakeries create cakes with anti-gay marriage messages and Bible verses. Jack brought claims for discrimination on the basis of creed to the CCRD. In considering Jack’s cases, the Commission found no discrimination, noting that the bakeries declined because the message was offensive to the bakers.

Phillips next appealed to the Colorado Court of Appeals, which affirmed the decision of the Commission. The Court of Appeals did not see an issue with the treatment Phillips received below, distinguishing the Jack cases. The Colorado Supreme Court declined to review that decision, but the U.S. Supreme Court then agreed to hear the case.

What issues were before the Court?

The Court actually granted certiorari to consider “Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.” (But that is not really the question that the Court answered.)

What did the Supreme Court decide?

While the Masterpiece Cakeshop case presented an opportunity for the U.S. Supreme Court to resolve some of these thorny issues, it did not. Instead, the Court held that the hostility toward Phillips’s religious beliefs and the differential treatment he received v. the Jack cases demonstrated that he did not receive a neutral, fair adjudication. For those reasons, the Court concluded that the judgment must reversed.

The Supreme Court ruled 7-2 that the Commission’s actions violated the Free Exercise Clause of the First Amendment. The case was decided on religious freedom grounds under a narrow exception to the normal rule that free exercise of religion must typically yield to neutral state laws. Normally, the government needs only a rational basis to burden someone’s free exercise of religion (here, applying Colorado law to force Phillips to create a wedding cake in violation of his religious beliefs about marriage). But if the government acts out of hostility to religion in burdening free exercise, the case is reviewed differently. If government does not act neutrally toward religion, it must justify its burden on religion at a much higher level.

Nor did the Court decide the case on free speech grounds. So, it did not decide whether creating a wedding cake is expressive conduct that qualifies for protection under the Free Speech Clause of the First Amendment.

This means that the arguments for or against free speech or free exercise rights can continue to be litigated in courts across the country.

What does Masterpiece mean for religious freedom?

Siding with the baker here sends a message that religious beliefs must be respected and cannot simply be dismissed as bigotry. Justice Kennedy’s opinion spends a lot of time explaining how LGBT individuals must be treated with respect in the marketplace, while on the other hand recognizing that disagreement with same-sex marriage on religious grounds must also be respected as a legitimate belief.

The Court seemed to set up a kind of continuum of religious freedom vis-à-vis state protection of LGBT rights, but leaves it up to future cases to decide exactly where each side’s rights must yield. The Court remarked that, for instance, it would clearly be unconstitutional for a state to compel clergy to perform a same-sex wedding ceremony if doing so conflicted with the clergy’s religious beliefs. But that same theory could not be extended to give every business owner or purveyor of goods/services an exemption to providing goods and services connected with same-sex weddings. The Court, however, leaves the exact line unclear.

Does Masterpiece apply differently for individuals and for ministries?

While the general principle that the government must not be hostile to religion is the same, it is likely added protections will apply. In the case of an individual, the courts can only look at whether the religious beliefs are sincerely held as a beginning point. But in the case of a ministry, the court is generally not allowed to examine decisions made as a matter of religious doctrine, because courts are forbidden to do that under a doctrine called ecclesiastical abstention. So a church or other ministry will likely have more freedom to follow its religious beliefs—as Justice Kennedy indicated when he commented that it would clearly be unconstitutional to force clergy to perform a same-sex wedding ceremony. The key for the ministry would be exactly how it had defined its beliefs.

Does the case mean that similar cases will come out in favor of the business owner?

Not necessarily. Because the decision in this case turned on the unique facts presented, the opinion does not do much by way of creating a rule for future courts to apply in deciding these cases. In fact, there has been one case that has come out since Masterpiece that uses the opinion to support a finding of discrimination. However, if a business owner can show that the state agency had a similar animus toward his or her religious beliefs, Masterpiece will definitely be relevant.

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¹ Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Commission, 584 U.S. ___ (2018), slip op. at 13.