Alerts and Updates

Supreme Court's Same-Sex Wedding Cake Decision Avoids Constitutional Issues, Focuses on State Commission's 'Hostile' Conduct

June 6, 2018

Masterpiece Cakeshop is most notable for the constitutional issues it declined to address. ... In the meantime, public accommodations laws that prohibit discrimination based on sexual orientation remain “unexceptional” and lawful.

On June 4, 2018, the Supreme Court held in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission that the Commission’s disposition of a case involving a Christian baker who refused to make a wedding cake for a same-sex couple was tainted by “some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated [the baker’s] objection.” As a result, the “neutral and respectful consideration” that the Commission (a state body) owed the baker in all parts of the proceeding “was compromised.” The Court explained that “The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.” Under these circumstances and for these narrow reasons alone, the Court reversed the Commission’s finding that the baker violated Colorado’s law barring sexual orientation discrimination in a public accommodation. 

Masterpiece Cakeshop is most notable for the constitutional issues it declined to address. The Court was clear that “The 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.” Simply put, the Court is waiting for some other day (or no day at all) to address the merits of the constitutional questions presented by the case. In the meantime, public accommodations laws that prohibit discrimination based on sexual orientation remain “unexceptional” and lawful.

Coincidentally (or not), on the same day the Supreme Court decided Masterpiece Cakeshop, it distributed for review by the Justices a petition for a writ of certiorari in Arlene’s Flowers, Inc. v. Washington, a case involving a florist who acted similarly to the baker in Masterpiece Cakeshop by refusing to sell flowers for a same-sex wedding. Only time will tell whether the Supreme Court will use Arlene’s Flowers, Inc. (or some other case) to elaborate on the thorny constitutional issues it sidestepped in Masterpiece Cakeshop

Case Background

Masterpiece Cakeshop, Ltd., a Colorado bakery, sells baked goods including elaborate custom-designed cakes for birthday parties, weddings and other events. Jack Phillips is an expert baker and a devout Christian who has owned and operated the shop for 24 years. “To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs.”

In the summer of 2012, Charlie Craig and Dave Mullins, who were planning to marry, entered Phillip’s shop and told him that they were interested in ordering a cake for “our wedding.” At that time, Colorado did not recognize same-sex marriages. Phillips told the couple that he would not create wedding cakes for same-sex weddings, though he would make their birthday cakes and shower cakes, and sell them cookies and brownies. Phillips explained that he does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage, and because Colorado (at that time) did not recognize same-sex marriages.

Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips, alleging they had been denied “full and equal service” at the bakery because of their sexual orientation. The Colorado Civil Rights Division investigated and found that Phillips declined to sell custom wedding cakes to about six other same-sex couples on this basis. The Division found probable cause that Phillips violated the Colorado Anti-Discrimination Act (CADA), which prohibits discrimination based on sexual orientation, and referred the case to the Colorado Civil Rights Commission. The matter was heard by an administrative law judge (ALJ) who found against Phillips and the cake shop and in favor of Craig and Mullins. The ALJ denied Phillips’ argument that requiring him to create a cake for a same-sex wedding would violate both his First Amendment right to the free exercise of religion and his First Amendment right to free speech by forcing him to express a message he disagreed with. The Commission affirmed the ALJ’s decision. The Colorado Court of Appeals, in turn, affirmed and the Colorado Supreme Court declined to hear the case.

During the state administrative proceedings, one commissioner publicly remarked on the record that:

"I would also like to reiterate what we said in the hearing or the last meeting. 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."

In addition, “on at least three other occasions the [Colorado] Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included ‘wording and images [the baker] deemed derogatory[.]’” These outcomes were in stark contrast with the Commission’s treatment of Phillips’ objection. 

On review before the Colorado Court of Appeals, Phillips argued that the Division’s disparity in treatment of a baker’s refusal to create a cake with images disapproving of same-sex marriage and his refusal to create a cake with an image endorsing same-sex marriage reflected hostility towards his religious beliefs. In rejecting Phillips’ argument, the Court of Appeals “addressed this disparity only in passing and relegated its complete analysis of the issue to a footnote.”  

The Court’s Analysis

The Court held 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.” The Court made clear that this prohibition clearly applied to an adjudicatory body like the Commission.

The Court identified numerous instances of hostility to Phillips’ religious beliefs, including the failure of any commissioner to object to one commissioner’s disparaging public comment about Phillips’ religious beliefs, the disparate treatment between Phillips’ case and the cases of other bakers who refused to make cakes on the basis of conscience, and the fact that the Colorado Court of Appeals relegated its analysis of this disparity only in passing and in a footnote. The Court noted that this disparity in treatment “elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.”

According to the Court, the Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion. As such, the “official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires. The Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside.”

What This Means for Employers

Masterpiece Cakeshop is not the landmark civil rights case some were expecting. The case does not answer the question of when the freedom of religion must yield to public accommodation laws that prohibit discrimination based on protected classes when such laws are in apparent tension, although the Court suggests that the facts underlying any such conflict may be determinative of the outcome. As such, Masterpiece Cakeshop does not change much for employers. 

Nevertheless, and despite an ideologically stratified court and the issuance of five different opinions in this case, a remarkable eight out of nine Justices expressly stated their agreement with the following principles:

“[I]t 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.”

“Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”

For now, and with the express backing of eight Supreme Court Justices, state public accommodations laws that prohibit discrimination based on protected classes remain lawful. Therefore, employers should familiarize themselves with their obligations under the patchwork of federal, state and local public accommodations laws and ensure that they know what “protected classes” are covered under these laws and whether they are in compliance with them. Employers should also review their policies and train managers to ensure they promote compliance with public accommodation laws to avoid, among other things, costly litigation and public relations issues.

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