Court Sides With Baker Who Refused To Bake Custom Cake For Gay Wedding

When Jack Phillips refused, on religious grounds, to make a custom wedding cake for a gay couple, the couple filed a charge with the Colorado Civil Rights Commission alleging the refusal violated Colorado’s Anti-Discrimination Act. Phillips maintained he had a First Amendment right to refuse to bake the cake, but the Commission found him in violation of the Act and the Colorado Supreme Court affirmed. The Court, in a 7-2 decision by Justice Kennedy, the same justice who penned the decision finding a constitutional right to same-sex marriages in Obergefell, reversed on the narrow grounds that the Commission’s open hostility to Phillips’ religious views constituted a violation of his First Amendment right to exercise his religion, leaving the free speech issue for another day. While noting the right of gay persons to be treated with dignity, the majority held that Phillips’ religious views were also entitled to “neutral and respectful consideration,” which was not reflected in the record of the Commission’s hearings, where his views were compared to a defense of slavery or the Holocaust. The Court also contrasted the Commission’s actions with those in which the Commission found no violation of the Act when three other bakers declined to bake cakes that were to be derogatory toward same-sex marriage, as further evidence of its hostility. Justice Kagan, joined by Justice Breyer, filed a concurrence arguing that the Commission could have fairly treated Phillips differently from the other bakers had the Commission otherwise acted neutrally. Justice Gorsuch, joined by Justice Alito, penned a concurrence disagreeing with Justice Kagan, arguing that there was no reasonable way for the Commission to treat Phillips differently from the other bakers. Justice Thomas, joined by Justice Gorsuch, filed a concurrence arguing that Phillips should have also won under his free speech claim, that his cakes were speech and he could not be compelled to speak in a way that violated his religious views. Justice Ginsburg, joined by Justice Sotomayor, dissented, arguing that the Commission’s actions were not hostile to Phillips in a way that violated his right to free expression. A link to the decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is here.