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Court Rules for Baker in Same-Sex Wedding Cake Case, Avoids Key Issue

Colorado failed to apply law with neutrality toward religion, 7-2 court decision finds

U.S. Supreme Court building in Washington on Thursday, April 12, 2018. (Bill Clark/CQ Roll Call)
U.S. Supreme Court building in Washington on Thursday, April 12, 2018. (Bill Clark/CQ Roll Call)

Updated 1:50 p.m. | The Supreme Court on Monday sided with a Colorado baker who declined to make a cake for a same-sex wedding because of his religious views, ruling that the state’s civil rights commission violated his rights when it did not decide the matter with religious neutrality.

The justices, in a 7-2 opinion, took a narrow approach that avoided the big question — where to draw a line between religious liberty and anti-discrimination laws — that had made it a potentially landmark case on a hotly contested social issue.

Justice Anthony M. Kennedy wrote the majority opinion, and made clear that the court’s main issue was how the state commission treated Jack Phillips, the owner of Masterpiece Cakeshop. That was something Kennedy, who was considered the deciding vote in the case, had expressed at oral arguments in December.

“The commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” Kennedy wrote. “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.”

The opinion latches on to what it calls the “inappropriate sentiment” of one Colorado commissioner who described claims of freedom of religion at a 2014 meeting as “one of the most despicable pieces of rhetoric” that people can use to hurt others.

Kennedy points out that state law protects against discrimination on the basis of religion as well as sexual orientation, and notes that no other state commissioners objected to the statement.

However, the opinion makes equally clear that this ruling doesn’t dictate the outcome of future cases that would ask the Supreme Court to weigh religious rights against anti-discrimination laws.

“The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market,” Kennedy wrote.

Joining Kennedy in the majority were Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Samuel A. Alito Jr., Elena Kagan and Neil Gorsuch. Justice Clarence Thomas filed a separate opinion that concurred with the conclusion.

Justice Ruth Bader Ginsburg filed a dissent, joined by Justice Sonia Sotomayor, that states the hostility was not enough to reverse the state commission’s decision that Phillips violated Colorado’s anti-discrimination law.

The court found hostility in how Phillips’ case compared to the cases of other bakers who refused to make cakes resembling an open Bible with verses on it, with one cake including an image of two groomsmen, holding hands, with a red ‘X’ over the image, according to Ginsburg’s dissent.

The different outcomes “do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decision-making entities considering this case justify reversing the judgment below,” Ginsburg wrote.

Reaction to the ruling

Both religious groups and civil rights groups found reasons to cheer the decision, even if the broader free speech and anti-discrimination claims were left unsettled.

“The court has answered a few questions and generated many more,” said Tobias Barrington Wolff, a professor at the University of Pennsylvania Law School.

Phillips’ shop in Lakewood, Colorado, offers a variety of baked goods, and he considers himself a cake artist. He is a devout Christian who says his deeply held beliefs include that God intended marriage to be the union of one man and one woman.

Charlie Craig and Dave Mullins went to Phillips’ shop in 2012, before Colorado recognized same-sex marriages, and said they were interested in ordering a cake for their wedding. Phillips told them he does not “create” wedding cakes for same-sex couples because he feels it would be a personal endorsement of an event celebrating something that goes against Bible teachings.

Craig and Mullins filed a discrimination complaint in 2012, and a state court ruled that requiring Phillips to comply with the state’s anti-discrimination law did not violate his rights to free exercise of religion.

Some justices, in writing separately, showed deep divisions about the bigger questions in the case: whether Phillips was an artist, whether a wedding cake can be religious, and how such a case would be decided if, or when, it returns to the high court.

For instance, Gorsuch and Kagan traded barbs about the characterization of the cake. A lengthy footnote from Kagan explained Gorsuch’s view that the product at issue in the case was not a “wedding cake” but a “cake celebrating same-sex marriage”— and then flatly said, “That is wrong.”

Suggesting that this case is only about “wedding cakes” is part of the problem, Gorsuch said, because it allows the government to calibrate their description of the cake to fit their preferred outcome.

“It is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding cake is just like any other — without regard to the religious significance his faith may attach to it — than it would be for the Court to suggest that for all persons sacramental bread is just bread or a kippah is just a cap,” Gorsuch wrote in a concurrence.

Sen. Ben Sasse said in a news release that the decision is “good news” for defenders of the First Amendment because it protects the free exercise of religion.

“But Justice Thomas is right: The Court punted on many issues, and will hopefully safeguard freedom of speech more fully in future opinions,” the Nebraska Republican said.

Rep. David Cicilline, co-chairman of the LGBT Equality Caucus, used the decision to call on Congress to pass legislation he authored to prohibit discrimination based on sexual orientation.

“In order to ensure full equality for LGBT individuals in our country, Congress needs to pass the Equality Act,” the Rhode Island Democrat said in a news release. He called on House Speaker Paul D. Ryan to “bring this bill to the floor for a vote and let members of Congress be judged by their constituents for where they stand.”

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