Supreme Court Dodges Sticky Issues in Same-Sex Wedding Cake Case

Both sides of the political divide had been eagerly awaiting the decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.  The Supreme Court’s decision, however, largely left the central issue of the case unresolved.

This case involves a Colorado baker who refused to bake a wedding cake for a same-sex couple in 2012 because doing so would have gone against his religious beliefs.  At the time he made this decision, Colorado’s anti-discrimination law prohibited public accommodations like his cakeshop from discriminating against individuals because of their sexual orientation.  On the other hand, as the Court noted, there was no nationally recognized freedom for same-sex couples to marry in 2012.

The baker argued that his decision not to serve the couple was protected by the First Amendment in two ways.  First, he claimed that creating a wedding cake is a form of artistic expression that should be protected by the First Amendment’s clause guaranteeing the freedom of speech.  Second, he stated if the government forces him to perform an act that would violate his sincere religious beliefs (i.e. creating a wedding cake for a same-sex couple), then it would violate his right to freely exercise his religion.

The Colorado Civil Rights Commission rejected the baker’s arguments, finding that the state’s anti-discrimination law was a general law that applied neutrally to him, just as it did to everyone else.  Some of the commissioners charged with deciding the case, however, made disparaging comments about religious freedom, which none of the other commissioners disavowed. The baker’s appeals to two state appellate courts were unsuccessful, leading him to the Supreme Court, which agreed to take the case.

The Specifics of the Supreme Court’s Decision

In a 7-2 decision, the Court ultimately ruled in favor of the baker.  Instead of taking a position on the intersection of religious freedom and anti-discrimination laws, the Court’s decision was narrowly tailored to the fact pattern presented by the case at hand, and did not truly side with either religious freedom supporters or LGBT rights advocates.

Justice Kennedy’s majority opinion focused on the Commission’s obligation to consider a person’s religious beliefs in a “neutral and respectful” manner.  In the Court’s view, the disparaging comments made by members of the Commission tainted the proceedings, to the point that the Commission failed to provide the “neutral and respectful” consideration that the baker was due.  Therefore, the Court explained, the Commission’s order against the baker had to be set aside.

The Court was careful to add that “the outcome of cases like this in other circumstances must await further elaboration in the courts.”  Future cases, the Court declared, “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 striking this balance, the Court reiterated that “it is a general rule that [religious and philosophical] 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.”

Three Concurrences and a Dissent

Three of the justices in the majority wrote separate concurrences.  Justice Kagan (joined by Justice Breyer) agreed that the Commission failed to consider the baker’s religious beliefs in a neutral and respectful manner, but emphasized that, in her view, the baker contravened the state’s public accommodations law by refusing the same-sex couple the same service that he would have provided to an opposite-sex couple.  Justice Gorsuch (joined by Justice Alito) disagreed with Justice Kagan and explained that, more generally, “the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise.”

Justice Thomas (joined by Justice Gorsuch) separately addressed the baker’s free-speech claim, concluding that the baker’s conduct was protected by the First Amendment’s free-speech clause because a wedding cake is expressive and artistic, and the state effectively compelled his speech by penalizing him for refusing to make a wedding cake for the same-sex couple.

Justice Ginsburg (joined by Justice Sotomayor) wrote a dissent arguing that the Commission’s statements and actions cited by the majority “do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation.”  She would have ruled in the couple’s favor on the ground that they were denied the level of service that the baker gave to heterosexual couples.

Masterpiece Cakeshop’s Effect on Employment Law

Because the Masterpiece Cakeshop ruling revolves around case-specific details, it largely leaves the employment law status quo untouched.  Although the question relating to LGBT rights and religious freedom in the marketplace remains unresolved, Maryland is one of 20 states that prohibits public accommodations from discriminating on the basis of sexual orientation.

Looking forward, the Court has been asked to consider a similar case out of Washington in which a florist asserted that her religious beliefs prevented her from providing flowers for a same-sex wedding.  The Court may announce whether it has decided to hear the case as early as next week, though any such ruling on the constitutional issues raised would not be expected until sometime after the Court’s next term, which starts in October.


Kollman & Saucier acknowledges and appreciates the significant work that law student intern, Yitzchak Besser, put into preparing this blog post.


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