Unresolved: SCOTUS Only Sided With Baker Because Colorado Was Hostile To His Religious Beliefs

Posted: Jun 04, 2018 10:35 AM
Unresolved: SCOTUS Only Sided With Baker Because Colorado Was Hostile To His Religious Beliefs

In a 7-2 decision, the Supreme Court has ruled in favor of Jack Phillips, a Colorado baker who refused to make a custom wedding cake for a same-sex wedding. This case is roughly six years old, with the Court hearing oral arguments last fall. This is not a split decision. It’s pretty decisive. In this decision, the Court ruled that Colorado had violated Mr. Phillip’s “sincere religious objections.”

The Court heard arguments in early December of 2017, where they reportedly seemed divided over the issue. This legal matter dates back to 2012. Mr. Phillips wrote an op-ed in The Washington Postgiving his side of the story, namely that he doesn’t refuse service to anyone, but he draws the line at custom cakes. In the process, he’s lost 40 percent of his business and noted the hostility the state of Colorado, through their civil rights commission, exhibited in their initial ruling against him for refusing to bake a cake:

Many people have asked me how I’m feeling as I await the U.S. Supreme Court’s ruling in my case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. My answer changes moment by moment because my feelings are a whirlwind. More than anything, though, I wonder if there will be a place in the community for me when the dust settles. Will this big, diverse country of ours still have room for me and the millions of others who share my beliefs about marriage?

At times, my concerns are quite specific. I consider whether I’ll ever again get to do the wedding art that I loved. Will I get to see that gleam in a bride’s eye when my cake design captures her vision for the big day?

Will my shop survive the 40 percent loss of business that we suffered when the government forced us to decide to stop designing wedding cakes? Or will everything that my wife and I worked for be gone?

I also wonder whether the people who have taken an interest in my case truly understand who I am and how I operate. It’s really quite simple: I serve everyone, but I can’t create custom cakes that express messages or celebrate events in conflict with my faith. That is why I told the gentlemen who are suing me that, even though I couldn’t design a custom cake to celebrate their same-sex marriage, I’d be happy to sell them anything else in my shop or create a cake for them for another occasion.


The government’s hostility toward my beliefs has spread through pockets of my community. My life and the lives of my family have been threatened repeatedly. Last year, one man swore that he’d shoot me in the head, and another threatened to kill me with a machete — all for declining to create a wedding cake. The threats and harassment have been so bad at times that my wife has been too afraid to set foot in our shop.

If the Supreme Court rules against me, I fear it will only get worse. The law, I’ve come to learn, not only dictates what you may do, but it also teaches what you ought to do. If the highest court in the land banishes my beliefs from the marketplace, that will embolden others to continue treating me with scorn and contempt.

Well, that hostility was noted in the Supreme Court’s decision. 

“The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed,” wrote Justice Anthony Kennedy who penned the majority opinion.

“But the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same.”

Here’s the full opinion:

Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and operated by Jack Phillips, an expert baker and devout Christian. In 2012 he told a same-sex couple that he would not create a cake for their wed- ding celebration because of his religious opposition to same-sex marriages—marriages that Colorado did not then recognize—but that he would sell them other baked goods, e.g., birthday cakes. The couple filed a charge with the Colorado Civil Rights Commission (Commission) pursuant to the Colorado Anti-Discrimination Act (CADA), which prohibits, as relevant here, discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.” Under CADA’s administrative review system, the Colorado Civil Rights Division first found probable cause for a violation and referred the case to the Commission. The Commission then referred the case for a formal hearing be- fore a state Administrative Law Judge (ALJ), who ruled in the couple’s favor. In so doing, the ALJ rejected Phillips’ First Amendment claims: that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed and would violate his right to the free exercise of religion. Both the Commission and the Colorado Court of Appeals affirmed.

Held: The Commission’s actions in this case violated the Free Exercise Clause. Pp. 9–18.

(a) The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. See Obergefell v. Hodges, 576 U. S. ___, ___.  While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion. To Phillips, his claim that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. His dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages per- formed in the State and before this Court issued United States v. Windsor, 570 U. S. 744, or Obergefell. Given the State’s position at the time, there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case. Pp. 9–12.

(b) That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.

Another indication of hostility is the different treatment of Phillips’ case and the cases of other bakers with objections to anti-gay messages who prevailed before the Commission. The Commission ruled against Phillips in part on the theory that any message on the re- quested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips’ willingness to do the same irrelevant. The State Court of Appeals’ brief discussion of this disparity of treatment does not answer Phillips’ concern that the State’s practice was to disfavor the religious basis of his objection. Pp. 12–16.

(c) For these reasons, 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 government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520. Factors relevant to the assessment of governmental neutrality include “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decision making body.” Id., at 540. In view of these factors, the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of his religious beliefs. The Commission gave “every appearance,” id., at 545, of adjudicating his religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it, id., at 537, but government has no role in expressing or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate. The inference here is thus that Phillips’ religious objection was not considered with the neutrality required by the Free Exercise Clause. 

The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. But the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same.

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. Chief Justice John Roberts, along with Associate Justices Anthony Kennedy, Samuel Alito, Neil Gorsuch, Stephen Breyer, Elena Kagan, Clarence Thomas formed the majority opinion.

This is a limited ruling, not really addressing the overall issue of vendors refusing service to those with whom their religious beliefs might come into conflict. It’s a bit discouraging, as we’re inching closer towards having litmus tests for participating in the free market, which is quite un-American. Yet, I’ll take the high court offering a defense against anti-Christian sentiments within government. Then again, we'll probably see this issue arise again somewhere in the country.