The Supreme Court Rules in Favor of the Baker Who Turned Away Gay Couple: What Does This Mean for Future "Cake Cases?"

By , Attorney

Although the U.S. Supreme Court appeared to hand the Christian baker a victory, the Court did not hold that business owners can discriminate against same-sex couples. Continue reading to learn more about the basis for the Court's decision.


On Monday, June 4, 2018, the United States Supreme Court issued its much anticipated decision in Masterpiece Cakeshop, Ltd., v. Colorado Civil Rights Commission. The case involves baker, Jack Phillips, who refused to make a wedding cake for a gay couple because, he claimed, doing so was contrary to his religious beliefs. After investigating a complaint from the couple, the Colorado Civil Rights Commission rejected Phillips' freedom of religion defense and found he violated the state's antidiscrimination laws. Phillips appealed.

The Supreme Court (SCOTUS) found in favor of the baker, but based its decision on the narrow facts of this case—namely that the ruling against Phillips had to be invalidated, because the Commission showed hostility toward his religious beliefs.

Masterpiece doesn't set forth a new standard of review for these types of "civil rights versus First Amendment religious freedom" cases. Rather, it simply holds that the First Amendment requires the government to apply neutrality when considering religious freedom claims.


In 2012, Charlie Craig and Dave Mullins (a gay couple) went into Masterpiece Cakeshop in Denver, Colorado to order a wedding cake for their wedding and reception.

Owner Jack Phillips—a devout Christian—stated he couldn't provide a cake because of his religious opposition to same-sex marriage. Based on his refusal, the couple filed a complaint with the Colorado Civil Rights Commission (Commission) pursuant to the Colorado Anti-Discrimination Act (CADA or the Act ), which states:

It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. (Colo. Rev. Stat. §24–34–601(2)(a) (2017).) A "public accommodation" includes any place of business engaged in any sales and/or offering any services to the public. (See id. §24–34–601(1).)

The case went to a formal hearing before a state Administrative Law Judge (ALJ), who ruled in the couple's favor. The ALJ rejected Phillips' First Amendment claim that requiring him to create a cake for a same-sex wedding would violate his rights to free speech and to free exercise of religion. Both the Commission and the Court of Appeals affirmed and found for the couple. Phillips appealed.

SCOUTS ruled 7-2 in favor of Phillips. However, his "victory" and the ruling are extremely narrow. As many legal commentators have pointed out, the majority did not decide whether making the cake would violate Phillips' rights to free speech or free exercise of religion. Instead, the Court focused on the Commission's conduct and found that the government's lack of neutrality and its hostility to Phillips' religious freedom defense amounted to a constitutional violation.

The Court Acknowledged the Balancing of Civil Rights and Religious Freedom

Many of the general proclamations in the opinion confirm the Court's view that sexual orientation discrimination is prohibited. Justice Anthony Kennedy, writing for the majority, stated:

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason, the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.

While religious objections are protected, it's a recognized "general rule that religious objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."

However, the Court stopped short of deciding whether the refusal to provide a wedding cake (or similar goods and services) based on a religious freedom claim amounts to a violation of civil rights or whether making the cake would amount to a violation of the right to religious freedom.

What Is the Basis of the Court's Decision?

The Court focused primarily on the Commission's behavior and determined that it expressed hostility to the baker's religious objections and beliefs during a hearing, when one Commissioner stated:

"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."

Justice Kennedy wrote that "to describe a man's faith as ‘one of the most despicable pieces of rhetoric that people can use' is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere."

The Court found that 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 and that Phillips' religious objection was not considered with the neutrality the Free Exercise Clause requires. As a result, the Court set aside the Commission's order against Phillips.

In her dissenting opinion, which was joined by Justice Sonia Sotomayor, Justice Ruth Bader Ginsburg stated that there "is much in the Court's opinion with which I agree," but she "strongly" disagreed with the idea that the same-sex couple should lose this case. In her view, the Commissioners' statements about religion did not justify ruling in favor of Phillips.

How Does this Affect Future "Cake Cases?"

It remains to be seen how the states will apply the legal principles set forth in Masterpiece. The Court noted: "[t]he 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." In other words, we'll have to wait and see.

While some advocacy groups acknowledge that the narrow application in Masterpiece does not provide a legal basis for business owners to turn away customers based on sexual orientation, others are concerned and think this decision may encourage discrimination. Some believe the ruling may prompt Christian advocacy groups to file follow-up cases, in an effort to extend Masterpiece Cakeshop to florists, photographers, wedding halls, and other similar businesses.

According to one opinion piece published in The New York Times:

"The decision will have little bearing on other cases, since it is specific to the Colorado case. It may, however, encourage more of the legalized discrimination that hurts gay people every day in our country, one that is increasingly led by religious fundamentalists."

__ Silas House, (The Masterpiece Decision Isn't Harmless, The New York Times)

Although we'll have to take a "wait and see" approach, it may not be long before we have another, similar case in front of the Supreme Court.

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