In a historic ruling, the court sided with Masterpiece Cakeshop, opening the door for sanctioned discrimination and creating a mess for lower courts to interpret the law.
This article was made possible because of the generous support of DAME members. Will you contribute just $5 a month to support our journalism?
Yesterday, the United States Supreme Court issued a decision in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. It’s a decision that is equal parts confused and confusing, and manages to enshrine discrimination against the gay couple at the heart of the lawsuit while providing no useful path forward for future courts to decide similar issues. In short, it’s a mess.
Masterpiece Cakeshop is one in a long line of cases where evangelical business owners—usually those that provide wedding-related services—have refused to do business with same-sex couples. In Cakeshop, a Christian baker named Jack Phillips, a self-styled “cake artist” and conservative Christian, refused to sell a wedding cake to Charlie Craig and Dave Mullins, a gay couple. However, Colorado has an anti-discrimination law that prohibits refusing service to someone because they are gay.
Craig and Mullins sued and won their case through every level of review in Colorado, including before the Civil Rights Commission and the Court of Appeals.
Phillips appealed his Colorado Court of Appeals loss to the United States Supreme Court, saying that it was a First Amendment violation to require him to make a cake that displayed a message with which he disagreed.
This case is a First Amendment case in both a well- and lesser-known sense. Most familiar, it’s a free speech case: Can Phillips be compelled to bake a cake for a same-sex couple or does doing so force him to “say” something he doesn’t want to? There’s also the free exercise side of the case: did Colorado’s Civil Rights Commission, when deciding the case, base its holding on a hostility to Phillips’s viewpoint?
Here’s where the mess comes in: The majority decided the latter question but not the former. This means that there’s still no real answer to the question of whether or not Phillips—or anyone else—has to bake that cake.
One tip-off that this thing was a muddle is the fact that there were five separate opinions: Justice Kennedy (of course!) wrote the majority opinion. For that, he was joined, predictably, by the conservative wing of the court: Justices Roberts, Thomas, Alito, and Gorsuch. Less predictably, and depressingly, he was also joined by Justices Kagan and Breyer, from the liberal wing of the court. However, Justice Kagan also wrote her own concurring opinion, which Breyer joined. Then Justice Gorsuch wrote a different concurring opinion, which Alito joined. Justice Thomas wrote his own concurrence too, and Gorsuch joined in that. Finally, Justice Ginsburg wrote a dissent, and Justice Sotomayor joined that. Whew.
The majority’s opinion kicks off with pretending that it will deal with the tough issues presented by this case:
The case presents 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.
Unfortunately, the majority opinion goes on to entirely sidestep those difficult questions. Instead of deciding whether Phillips can be “forced” to bake a gay cake, Kennedy focuses on whether the Colorado Civil Rights Commission was mean about Phillips’ religious beliefs. If the Commission was dismissive, that can be said to have violated Phillips’ free exercise of his religion in that he’s entitled to have the Commission consider his case in a religiously neutral way. Put another way, the Commission can’t operate from a position of favoring one religion over the other or disfavoring religion generally.
The majority goes through some contortions to determine that the Commission treated Phillips unfairly. In a public hearing on the case in 2014, one commissioner staked out what should be both a bedrock and an unremarkable position: If a businessman wants to do business in the state and he’s got an issue with the law’s impacting his personal belief system, he needs to look at being able to compromise.” This is, without a doubt, true. You’re not allowed, if you are a place of “public accommodation” such as a bakery, to discriminate against customers based on your religious beliefs.
Kennedy deliberately reads this as a comment that is hostile to religion—Phillips’s conservative religion in particular—because a different commissioner, at an entirely different meeting about the case, said this:
“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.”
The commissioner’s statement is just a fact: Religion has been used to justify discrimination, including slavery, and it’s repugnant to use religion to hurt people. That shouldn’t be a controversial statement. It doesn’t stand opposed to religion generally or any religion in particular. It merely states that religion should not be used as a tool to harm others.
It is on this flimsy rationale that Kennedy and six other Justices decided that Phillips was prevented from the free exercise of his religion: The fact that two commissioners said things that were less than complimentary about using religion to discriminate.
The majority also leaned hard on the fact that a few months after an administrative law judge had ruled in favor of Craig and Mullins, a man named William Jack visited three Colorado bakeries and requested cakes with anti-gay language and an image of two groomsmen covered by a red “X.” The Civil Rights Commission ruled that the bakeries were within their rights to hold that those bakeries didn’t discriminate, as they wouldn’t have made those cakes for anyone, regardless of their religious beliefs. In contrast, Phillips refused to sell Craig and Mullins a cake because they were gay men seeking a cake for their gay marriage. Phillips would have happily sold the same cake to a heterosexual couple.
Here’s where the depressing concurrence from Justices Kagan and Breyer comes in. They agreed with the outcome of the case here because they agreed that the Commission was hostile to Phillips’s religious beliefs. Justice Kagan pointed out that the Commission could have justified a different result in the case of William Jack and the case here simply by relying upon the language of Colorado’s anti-discrimination statute prohibiting discrimination, but they failed to do so.
Justice Ginsburg’s dissent shows why this view is both wrong and insincere: The Commission’s hearing was only one of many different layers of review this case underwent. First, the Colorado Civil Rights Division found probable cause that Phillips violated Colorado’s prohibition on discrimination based on sexual orientation. Then, an administrative law judge (ALJ) had a hearing and ruled on both Phillips and Craig and Mullins’ request for summary judgment—that this matter be decided without a fact-finding hearing. They found in favor of Craig and Mullins. Then, the Commission heard Phillips’ appeal after he lost at the ALJ stage. Finally, the Colorado Court of Appeals heard Phillips’ appeal from his loss at the Commission and again ruled in favor of Craig and Mullins. Phillips lost at four separate stages, only one of which had anyone displaying the slightest unhappiness that religion might be used as a cudgel to oppress people.
Not surprisingly, Justice Gorsuch wrote separately to explain at some length how he felt William Jack was discriminated against, ignoring all evidence that the bakeries refused to sell Jack his bigot cakes based on the content he wanted on them rather than any feelings about William Jack’s religion. Justice Thomas then had to join in to say that he would have gone farther than the majority and would have ruled on Phillips’ free speech claim and found that the Civil Rights Commission violated Phillips’ rights because making a wedding cake for a gay couple would have forced him to engage in “expressive conduct” with which he disagreed.
“Expressive conduct” refers to speech that isn’t strictly speech. It’s behavior that sends a message, such as wearing a black armband to protest the Vietnam War. There’s a catch, however: The conduct has to be expressive enough that a reasonable person viewing it would understand that the conduct was meant to be a communication. What that means here is that the average person would have to look at a wedding cake made by Phillips and determine that Phillips—not the gay couple—was making a statement in favor of same-sex marriage.
Thomas gets to this point by talking a lot about cake itself, even though this case really isn’t about cake. He writes that everyone knows wedding cakes are symbolic and that Phillips is a cake artist. Even if both of those things are true, it doesn’t add up to someone seeing a wedding cake and believing it reflects the views of the cake-maker, rather than the cake-buyer.
Thomas isn’t wrong about one key thing, however: the Supreme Court should have decided the free speech issue here. They should have settled the battle over whether cake-making or flower-arranging or photograph-taking constitute artistic expression. They also should have settled the battle over whether religion trumps the civil rights of LGBTQ people. By failing to do so, they leave lower courts in disarray.
Because there’s no ruling from the top court in the land, state courts will rule inconsistently. One state may find that a photographer can refuse to photograph LGBTQ people entirely while another may rule that all wedding-related services must be extended to same-sex couples. LGBTQ people still have no clear idea as to whether, when they walk in a store, that store has to serve them or whether the owner (or a random shop worker) can refuse to do so because their religion leads them to believe that being gay is wrong.
One might make the argument that a same-sex couple can simply seek out another baker or photographer or florist, one that reflects tolerant values. One could have made the argument that African-American people could have sat at a different lunch counter as well. Neither of those arguments is right. Businesses that hold themselves open to the public shouldn’t be able to refuse service based on their bigoted beliefs.
By refusing to grapple with the tough questions presented by this case, the Supreme Court, intentionally or not, sent a message that the rights of LGBTQ people aren’t worth deciding and possibly remain subordinate to the rights of religious people to discriminate. They may have also sent a message to, say, white supremacists business owners, that they should be free to discriminate based on their sincere religious beliefs. But none of us will know whether that is true or not, because we have no guidance from the Court.
Letting marginalized communities live in confusion and fear about whether they will be discriminated against isn’t supposed to be the American way, but thanks to rulings like these, it is now.
Democracy Dies Behind Paywalls
Help keep DAME’s critical reporting available to all.
Our supporters believe in fairness, truth, and transparency. Your financial support today ensures that we can continue to build a more equitable media landscape. Sign up today during our 2023 drive to support media dedicated to reporting on the issues that affect us all.