To Bake or Not to Bake…That is the Question

The United States Supreme Court, in a 7-2 decision, ruled today in Masterpiece Bakery v. Colorado Civil Rights Commission that the Masterpiece baker, Phillips, was within his legal rights to choose not to bake a wedding cake for a gay couple. While the case was litigated largely on the issue of freedom of speech (Phillips arguing that forcing him to make the same-sex wedding cake violated his rights of freedom of speech by forcing him to use his artistic talents to express a message with which he disagreed), the majority ultimately largely based its decision (reversing the Court of Appeals), on its conclusion that the Colorado Civil Rights Commission, when considering this case, failed to act with religious neutrality. Justice Kennedy, writing for the majority, was disturbed by the Colorado Commission’s improper accusation that Phillips was using his religious beliefs to defend his discriminatory conduct, saying that his actions were similar to what others had done before when defending slavery and the Holocaust. In supporting its “lack of neutrality” conclusion, the majority also cited the fact that the Colorado Commission had not found the actions of three other bakers (referred to in the opinion as the “Jacks bakers”) to be discriminatory when they each separately refused to bake cakes conveying anti-gay and religious messages. Aside from Kagan, all of the justices in the majority believed that Phillips and the Jacks bakers were legally the same in that they each refused to bake a cake conveying a message with which they did not agree and that the record demonstrated that these bakers would have refused to bake such cakes for ANY customer, regardless of their sexual orientation. For instance, if a heterosexual person went to Phillips to buy a wedding cake for her gay son and his fiance, Phillips would have refused to serve that person even though she was not gay. Justice Gorsuch said, “it was the kind of cake, not the kind of customer” that mattered to all of the bakers. Yet, the Colorado Commission treated the bakers in these situations differently. And so it seems, therein lay the problem for this Court. The Court definitely left open the possibility for a different outcome if the decision maker considers religious objections fairly and neutrally: something which was lacking here.

Full Opinion -Masterpiece Bakery v. Colorado Civil Rights Commission