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Supreme Court Rules in Favor of Baker Who Refused to Create Wedding Cake for a Same-Sex Marriage, but Does Not Open the Door for Discrimination Based on Religious Belief

By Lindsey M. Marcus - Franczek Radelet P.C.

June 5, 2018

In a limited opinion issued yesterday, the Supreme Court ruled in favor of a Colorado baker who refused to create a wedding cake for a same-sex couple. However, the Court’s decision in the case, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm., largely punted on the broader question of under what circumstances, if any, a business may refuse to provide services to or employ individuals based on a sincerely-held religious belief that potentially conflicts with anti-discrimination law, suggesting such questions need to be decided on a case-by-case basis.

The baker, Jack Phillips, is a devout Christian who believes that creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration contrary to his religious beliefs. He told the same-sex couple that he would not make them a wedding cake, but that he would sell them other baked goods like birthday cakes, shower cakes, and cookies. Notably, these events took place in 2012, before same-sex marriage was legal in either Colorado or nationally.

The couple filed a charge against Phillips with the Colorado Civil Rights Commission (Commission), alleging violations of the state’s prohibition on discrimination in places of public accommodation, which expressly prohibited discrimination based on sexual orientation. At each of the four levels of investigation or review by the state, Colorado officials rejected Phillips’ argument that requiring him to make the cake violated his constitutional rights to freedom of speech and to the free exercise of his religion.

In reversing the Colorado Court of Appeals, Justice Anthony Kennedy, who wrote the 7-2 majority opinion, focused the Court’s ruling on evidence that Phillips did not receive a fair and impartial hearing before the Commission. For example, the Court noted that statements by one Commission member during a public hearing that Phillips’ religious-belief defense was “despicable” and akin to defenses used to justify slavery and the Holocaust. The Court called these comments “inappro­priate for a Commission charged with the solemn respon­sibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.”

In addition, several facts about the Commission’s review of the case tipped the balance in Phillips’ favor at the Court. Phillips did not refuse to do any business with the same-sex couple. Rather, he refused only to create their wedding cake because, he argued, using his artistic skills on the cake would make an “expressive statement” endorsing the same-sex wedding. Further, while the couple’s charge was pending in the Commission, the Colorado Civil Rights Division (which initially investigates discrimination charges) found that three other bakers who refused to create wedding cakes with anti-gay marriage messages that were purportedly based on the customer’s religious beliefs had not violated Colorado law. These facts, the Court concluded, suggested that Phillips’ case was given “disparate consideration” on the question of whether Phillips’ rights to free speech and free exercise of his religion were infringed. Accordingly, the Court held that Phillips was entitled to a new hearing.

Although Colorado lost the case, Justice Kennedy emphasized that the decision should not provide a basis for discriminating against those who are gay. “Our society has come to the recognition that gay persons and couples cannot be treated as inferior in dignity and worth,” Kennedy wrote. Therefore, he continued, our laws and Constitution “can, and in some instances must, protect them in the exercise of their civil rights.” The Court recognized that while members of the clergy cannot be compelled to perform marriages for gay couples if they object on moral and religious grounds, this exception needs to be “confined” to avoid having a long list of persons who refuse to provide goods or services for gay weddings, “thus resulting in a community-wide stigma in­consistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” 

At the same time, Justice Kennedy emphasized that the “delicate question” of when the free exercise of religion must yield to an otherwise valid exercise of state power needed to be determined without reliance on a hostility to the underlying religious beliefs, which the Commission did not do in this case. Unfortunately, the opinion provides little guidance on where that line should be drawn, suggesting instead that future cases may be fact-specific.

The holding of Masterpiece Cakes has potential implications for all anti-discrimination laws, including in the employment and educational context. However, the fact that the Court largely declined to address whether the Constitution allows employers to discriminate against customers based on their sincerely-held religious beliefs means that employers and educators must continue to observe public accommodation laws prohibiting discrimination based on sexual orientation against members of the public, employees, and students. There currently is a split in the courts of appeal as to whether federal anti-discrimination laws prohibit discrimination based on sexual orientation, but more than half the states prohibit discrimination based on sexual orientation at least in some contexts. Until this issue is further fleshed out by the courts, employers and educators are advised to tread carefully when balancing these competing interests.

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