Supreme Court decides Masterpiece Cakeshop

Today, in narrow 7-2 ruling, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission in favor of the cakemaker, concluding that in adjudicating whether his religion “must yield to an otherwise valid exercise of state power,” (here the anti-discrimination provision of the state’s public accommodation law), the Colorado Civil Rights Commission failed to consider the case “with the religious neutrality that the Constitution requires.” This cases presented, as Justice Kennedy put it, “difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.” In holding that the Commission violated Mr. Phillips’ rights under the Free Exercise Clause, the Court did not fully answer the “difficult questions” presented, because as explained below, the Court’s reasoning rested on particularly fact specific conduct of the Commission in this case. Thus, for now, it will be up to the lower courts to decide these questions.

In this case, in July 2012, a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado open to the public, and requested that the owner, Mr. Phillips, create a cake for their wedding. The owner declined, telling them that he does not create wedding cakes for same-sex weddings because of his religious beliefs. He offered to sell them other baked goods in his store and the couple left without purchasing anything.

The Colorado Anti-Discrimination Act (CADA) prohibits discrimination in places of public accommodation on the basis of sexual orientation as well as other protected characteristics. The Act defines “public accommodation” broadly to include any “place of business engaged in any sales to the public and any place offering services . . . to the public,” but excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes.” Colo. Rev. Stat. §24–34–601(1).

The couple filed a complaint alleging that Masterpiece had discriminated against them in a place of public accommodation because of their sexual orientation in violation of CADA. After the Civil Rights Division investigated, the Commission found it proper to conduct a formal hearing and a State Administrative Law Judge (ALJ) ruled in favor of the couple. The Commission affirmed the decision of the ALJ. Masterpiece appealed, and the Colorado Court of Appeals also affirmed, rejecting its Free Speech and Free Exercise arguments.

The Supreme Court granted certiorari to answer the following question: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.

In an opinion authored by Justice Kennedy, the Supreme Court reversed though it left that question unanswered. Justice Kennedy, who has famously authored the Obergefell, Windsor, and Lawrence decisions, devoted a significant portion of the opinion to explain that “[o]ur 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.” And Justice Kennedy acknowledged that while the First Amendment ensures that people are given protection for religious and philosophical objections to gay marriage, as “a general rule … such 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 went on to explain, that instead of treating Mr. Phillips’ claims with the “neutral and respectful consideration” to which they were entitled, the Colorado Commission evidenced “clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.” Specifically, after the ALJ found in favor of the couple, the Commission convened to discuss the case. During one of those public hearings, 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 …And to me it is one of the most despicable pieces of rhetoric that people can use – to use their religion to hurt others.” In addition to the statements by the commissioner, the majority found evidence of religious hostility toward Mr. Phillips by the Commission in the different treatment it afforded other bakers, who refused to bake cakes that demeaned same-sex marriage based conscience objections.

Justice Kennedy pointed out at oral argument that the State’s position toward Mr. Phillips’ religion had been neither “tolerant nor respectful,” and today’s opinion rests on this fact. In holding that the Commission’s actions violated the Free Exercise Clause of religion, the Court explained: “[w]hatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality. … When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.” (emphasis added)

The Court left open the door for the lower courts do develop the law in this area noting the outcome may be different in a future controversy. The Court concluded its opinion by noting “[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.”

Justice Ginsburg, joined by Justice Sotomayor dissented. She noted that “[t]here is much in the Court’s opinion with which I agree,” but disagreed with its ultimate conclusion that the same-sex couple should “lose this case.” Justice Kagan, Gorsuch, and Thomas all filed concurring opinions.

IMLA joined an amicus brief filed by the SLLC in in this case arguing that the Court should not create exceptions to state laws and local ordinances that prohibit businesses from discriminating against customers on the basis of their sexual orientation. In our brief, we pointed out that over 100 local governments have adopted ordinances protecting citizens from sexual-orientation discrimination in public accommodations. Today’s ruling does not put those ordinances in jeopardy, but it does keep the door open for these claims to be brought and adjudicated.

To read the decision, click here.