Mr. Phillips owned Masterpiece Cakeship, Ltd., a bakery in Colorado. In 2012 he was approached by a same-sex couple who asked him to prepare their wedding cake. At the time, same-sex marriage was not legal in the state of Colorado, but the couple planned to marry in Massachussetts and celebrate a reception in Colorado. Mr. Phillips, who was a devout Christian, told the couple that he would not create a wedding cake for them because his religion taught him to believe exclusively in traditional marriage. However, he told them he would bake them brownies (presumably not marijuana-laced, although that would be permissible in Colorado), a shower cake, cookies, or almost anything else besides a wedding cake. Later, one of the couple’s mothers contacted Phillips and expression her consternation that he had refused to bake her son a cake to celebrate his marriage. She asked him to bake her a cake celebrating her son’s same sex marriage. He refused, again citing his religious beliefs as his reason.
The couple filed a complaint with the Colorado Civil Rights Commission pursuant to the Colorado Anti-Discrimination Act (CADA). This act prohibited 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.”
The Colorado Civil Rights Division found there was probable cause that Mr. Phillips had violated the couple’s civil rights and referred the case to the Commission. The Commission referred the matter to an Administrative Law Judge (ALJ) for a formal hearing. Phillips’ arguments at the hearing were twofold: 1) that requiring him to bake a cake to celebrate a same-sex wedding violated his First Amendment right to freedom of speech; and 2) that requiring him to bake a cake to celebrate a same-sex wedding violated his First Amendment right to freely practice his religion. The ALJ rejected these arguments and found in favor of the couple and imposed various remedial measures against Phillips. Phillips appealed to the Colorado Supreme Court, which upheld the ALJ’s decision. Phillips then appealed to the United State Supreme Court, which granted certiorari.
Justice Kennedy wrote the majority opinion for the Court. In a 7-2 ruling, the Court found that the Colorado Order against Phillips must be set aside because the government had failed to act neutrally with respect to Phillip’s sincerely held religious beliefs, thus violating his First Amendment right to the free exercise of his religion.
Justice Kennedy, writing for the majority, found it very troubling that at least two Commissioners, in adjudicating the case, made severely disparaging remarks about Phillips’ religion, claiming that it bore responsibility for slavery and the Holocaust. The record also showed that these comments had never been denounced by the state or its attorneys at any stage of the litigation, including in the current appeal before the U.S. Supreme Court.
Justice Kennedy seemed to stress that this case’s holding has limited precedential value and that going forward these types of cases will likely involve an intensive case-by-case factual analysis. The Court had suggested in Obergefell (the case that decided same-sex marriage) that, while states cannot deny marriage licenses to same-sex couples, that the First Amendment protects the free exercise of religion, which encompasses rights to express in various ways opposition to such marriages. But the Court had left for a future day how to balance these potentially competing rights.
The Court stressed that the dignity and basic rights of same-sex individuals and couples must be upheld. The Court also stated that an individual’s deeply and sincerely held religious beliefs must also be protected. In this sense, the Court seemed to be searching for a proper balance in adjusting these various rights when they come into conflict. But the fact scenario of this particular case did not lend itself to a broad principle that would be applicable to future cases involving a balancing of these competing rights.
What tipped the scale in favor of Phillips in this particular case was the overt hostility towards religion shown by the state in adjudicating the case. The state simply did not act with the requisite neutrality towards religion.
For example, in three other cases involving cakes, religion, and same-sex marriage (the “Jack” cases), the Colorado Commission had held in favor of bakers who refused to bake cakes for a customer named Jack, who had requested cakes that expressed opposition to same-sex marriage. The problem was that Colorado had not articulated any principled reason for their disparate treatment of Phillips, who refused to bake a cake celebrating a same sex marriage.
In sum, the overall facts of the case showed a constitutionally impermissible hostility towards religion in the state’s adjudication of the case. This did not satisfy the most basic requirement of the First Amendment that the government must be neutral with respect to religion.
Justice Kagan wrote a concurring opinion, in which she was joined by Justice Breyer. She agreed with the majority’s ruling, because she viewed the state’s adjudication of the case as tainted by religious hostility. However, she wrote that the state could have reached the same result in a constitutionally permissible manner that was neutral in its treatment of sincerely held religious beliefs. She felt there was a distinction between the Jack cases where the bakers had refused to bake cakes that denigrated same sex marriages and the current case, in which Phillips had refused to bake a cake celebrating a same sex wedding.
She found the critical difference in the cases was in the treatment of particular customers. For example, in the Jack cases, the bakers would have refused to bake cakes they deemed offensive regardless of who had requested it. That is, they did not single out Jack because of any particular characteristic he possessed that they disagreed with or found offensive. Rather, it was the message of the cake itself that they deemed offensive. On the other hand, in the Phillips case, the baker refused to bake the same type of wedding cake for a same sex couple which he would have baked for a heterosexual couple. That is, he discriminated based on the customer, and not the cake. She found that this distinction could have merited a finding that Phillips violated the same sex couple’s rights under Colorado’s anti-discrimination laws. But the state had not focused on this distinction. Rather, acting through its agents, it had manifested an overt hostility towards religion which is inconsistent with the First Amendment’s most basic requirements.
Justice Gorsuch wrote a concurring opinion, in which he was joined by Justice Alito. He agreed with the Court’s ruling and also elaborated additional bases upon which he would have decided the case. He disagreed with Justice Kagan that the bakers in the Jack cases were merely refusing to bake cakes of a certain type (with offensive messages) that they would have denied to any customer, whereas Phillip was refusing service to particular customers, and would have baked the same type of cake for a heterosexual couple.
In making his point, Justice Gorsuch noted a principle of generality that he claimed was not applied equally by the state in Jack and Phillips cases.
For example, at its most general level, a cake is nothing more than a mixture of flour, eggs, and frosting gussied up to look and taste delicious. At a more specific level, a cake may be one that is baked for a particular purpose, such as to celebrate a couple’s nuptials– i.e., a wedding cake. At a still more specific level, a cake baked for a particularly purpose (such aa a wedding cake) may also be used to convey a particular message. For example, in the Jack cases, the state found that the wedding cakes requested by Jack were intended to convey a particular message that was offensive, and that therefore it was permissible for the bakers to refuse to bake these cakes. On the other hand, in the Phillips case, the state found that Phillips had refused to bake a wedding cake for a same sex couple of the same type which he would readily have baked for a heterosexual couple.
There were two problems with this reasoning, in Justice Gorsuch’s opinion. The first problem was that it was not for the state to decide whether the content of a particular message was offensive or not in applying a generally applicable principle. The second problem was that the state had not applied the same level of generality to the cakes in the Jack and Phillips cases. In the Jack cases the state had characterized the requested cakes as cakes with a particular message (my phrase, interpreting Justice Gorsuch’s opinion), namely, a message which the bakers found offensive and would have refused to bake for any customer. On the other hand, the state found that the baker in the Phillips case had refused to bake a simple wedding cake (again, my phrase, interpreting Justice Gorsuch’s opinion) for a same sex couple, which he would have baked for a heterosexual couple.
In Justice Gorsuch’s view, the state failed to articulate any convincing reason for applying a different standard of generality to the cakes in the different cases. Rather, the state had taken an arbitrary “Goldilocks” approach, deciding which level of generality was “just right” in each individual case, with no ascertainable neutral standard to guide its approach. In his view, after factoring out state-imposed standards of message appropriateness and adjusting to the same level of generality for both cases, the cakes requested in both the Jack and Phillips cases could be fairly characterized as cakes with a particular message (i.e, a message opposing same sex marriage in the Jack cases, and a message celebrating same sex marriage in the Phillips case). Just like the bakers in the Jack cases, Phillips also would have refused to bake such a cake (i.e., a cake with a particular message – in this case, that of celebrating a same sex marriage) for any customer, including a heterosexual couple. Indeed Phillips had done just that when he had informed one of the couple’s mothers that he would not bake her a cake celebrating her son’s same sex marriage. Justice Gorsuch found that this disparate treatment of differing points of view was a constitutionally impermissible infringement on Mr. Phillips’ right to freely exercise his religion.
Justice Thomas wrote a concurring opinion in which he was joined by Justice Gorsuch. He expressed his belief that Phillips also had a valid free speech claim. He noted that certain actions (i.e., flag burning, nude dancing, conducting a silent sit-in, etc.) have been interpreted as protected “free expression” under the First Amendment, and that symbolism can be a very effective, though primitive, means of communication. He waxed eloquent on the powerful and almost universal symbolism of a wedding cake, noting that if one were to walk into a room and see a white, multi-tiered cake, one would immediately reach the conclusion that a wedding was afoot. The principal purpose of the wedding cake is symbolic rather than consumption oriented. So, for example, the traditions of taking pictures with the wedding cake, the cutting of the cake, the toast, the feeding a bite of the cake to one’s newly wedded spouse (my example based on my own wedding), and other such customs predominate over the actual eating of the cake. Indeed, wedding case is notoriously heavy and not always especially delicious (again, my own editorial comment). Because of the symbolic and expressive nature of creating a wedding cake, Phillips had a valid freedom of speech claim in Justice Thomas’ opinion.
Justice Ginsburg wrote a dissent in which she was joined by Justice Sotomayor. In her opinion, the state of Colorado had not infringed upon Phillips’ rights to religious freedom or freedom of speech because it had simply applied a generally applicable and religiously neutral law that had an incidental effect on Mr. Phillip’s religious beliefs. She did not believe that a few Commissioner’s hostile comments against religion in general and Phillips’ religion in particular, were sufficient to invalidate the state’s otherwise acceptable decision.
This argument has some persuasive value, in my opinion, but the fact that the Commissioner’s comments were so egregious (suggesting Phillips’ religion was responsible for slavery and the Holocaust) and that these comments were never repudiated by the state during any stage of the litigation, created a constitutionally toxic environment of hostility towards religion, in my opinion.
See Masterpiece Cakeshop, LTD., et al., v. Colorado Civil Rights Commission et al (584 U.S. ___).
The case presents interesting and difficult questions and issues regarding balancing the rights of same sex individuals and couples and the rights of individuals to freedom of speech and to freely practice their religion. Because the case has apparently limited precedential value, it is difficult to predict how other cases involving the balancing of such competing rights will be decided in the future.
But kudos to the Supremes for their effort to apply basic notions of fairness in respecting the dignity and rights of all parties.
This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.
