Emory Law News Center

Analysis: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
By Timothy R. Holbrook | Emory Law | June 20, 2018

Timothy R. Holbrook

Timothy R. Holbrook:
Asa Griggs Candler Professor of Law

When the Supreme Court agreed to hear the Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, many believed the court would answer the vexing question of which policy interest prevails when nondiscrimination laws and religious liberties collide. But the court did no such thing. Instead, the justices effectively punted, leaving that question unanswered.

The facts of the case are fairly straightforward. In 2012, David Mullins and Charlie Craig visited Masterpiece Cakeshop, in Lakewood, Colorado. Although same-sex marriage was not yet legal in Colorado, the two men were looking for a wedding cake for a reception in Colorado after their legal wedding in Massachusetts. Jack Phillips, the owner and operator of Masterpiece Cakeshop, is a devout Christian, and he declined to provide them with the wedding cake.

Mr. Phillips stated that he would not use his talents to convey a message of support for same-sex marriage, which was at odds with his religious faith. Mr. Phillips noted that he would “make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.” He later noted that he felt making such a wedding cake “would have been a personal endorsement and participation in the ceremony and relationship,” which was contrary to his beliefs.

Colorado state law, however, prohibits discrimination on the basis of sexual orientation in places of public accommodation under the Colorado Anti-Discrimination Act (CADA). The act creates an administrative system to resolve claims of discrimination. Mr. Mullins and Mr. Craig filed a complaint with Colorado’s Civil Rights Commission, saying that Mr. Phillips had violated CADA’s prohibitions on discrimination based on sexual orientation.

The Colorado administrative bodies and the Colorado Court of Appeals all sided with Mr. Mullins and Mr. Craig, rejecting Mr. Phillip’s arguments that requiring him to make the cake would violate his First Amendment rights to free exercise of religion and free speech. The Colorado Supreme Court declined to take the case.

The U.S. Supreme Court, however, decided to take the case. The case presented the difficult issue of whether creating a cake qualified as speech protected by the First Amendment.

The case also appeared to present squarely the tensions between nondiscrimination laws (particularly those protecting lesbians, gay, bisexual, transgender, and queer [LGBTQ] persons) and religious liberties. If the freedom of religion under the First Amendment trumped these nondiscrimination laws, then conceivably someone could deny service to someone on the basis of other protected classes, such as race or religion. For example, if a baker was opposed to interracial marriages or marriages by non-Christians, could she deny service in those contexts?

And we still don’t know the answers to any of those questions because the Supreme Court effectively kicked the can down the road.

Technically, the Supreme Court sided with the baker, Mr. Phillips, in a 7-2 decision. The court declined to address the free speech issue and instead decided the case on religious liberty grounds, based on the particular facts of this case. The court concluded that the Colorado Civil Rights Commission had failed to afford “neutral and respectful” consideration to Mr. Phillip’s claims of religious liberty. For example, one commissioner noted that, “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…. 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 court therefore concluded that this statement, along with others, “cast doubt on the fairness and impartiality of the commission’s adjudication” of the case.

The court also compared Mr. Phillip’s treatment with those where bakers declined to make cakes that contained anti-gay messages. The Court rejected the argument by the State of Colorado that the cases could be distinguished on the grounds of the offensiveness of the anti-gay messages. The court noted that “[t]he Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.”

The court explicitly left to future cases the vexing issue of whether religious liberty under the First Amendment can trump a state’s nondiscrimination laws:

“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.”

Although the decision was 7-2, the concurrences and dissents demonstrate that there was considerable disagreement among the justices about the case. Justice Kagan’s concurrence (joined by Justice Breyer) sought to distinguish the cases dealing with anti-gay cakes on the ground that such activity was not covered by CADA because no protected class was implicated. Justice Gorsuch concurred (joined by Justice Alito), arguing that Justice Kagan’s view of the case is inaccurate. In other words, this case and the anti-gay cake cases are the same. For him, the fact that this case involved a wedding cake was particularly important. Justice Thomas, joined by Justice Gorsuch, would also have decided the case on the basis of his free speech claim. Justice Ginsburg, joined by Sotomayor, dissented. She would have affirmed the commission’s conclusions that there was a violation of CADA, and she rejected the argument that the language used by the commission somehow demonstrated hostility to religious views.

Ultimately, though, this decision is a big nothing burger or, perhaps more accurately a nothing cake. Justice Kennedy managed to navigate between the Scylla and Charybdis of two of his key interests—the rights of LGBTQ persons and the freedoms of speech and religion. Unfortunately, it means that these issues will be litigated again in the future. With rumors rampant that Justice Kennedy may retire, Masterpiece Cakeshop may be his swan song, leaving his legacy intact.

Timothy R. Holbrook, Asa Griggs Candler Professor of Law