Supreme Court Punts on Deciding between Religious and Gay Rights

July 2, 2018

In Masterpiece Cakeshop, Ltd. et al., v. Colorado Civil Rights Commission, the United States Supreme Court recently ruled 7-2 in favor of a Colorado baker who refused to bake a wedding cake for a same-sex couple because he claimed it would violate his religious beliefs against gay marriage. Importantly, the Court’s ruling did NOT decide whether the baker acted within the bounds of the law when he refused to bake the cake on the basis of his religion. Instead, the Court made a narrow ruling in the baker’s favor because the Civil Rights Commission which originally heard the case failed to decide it with neutrality. As a result, the specific question of whether public accommodations can refuse to provide a service to a same-sex couple on the basis of religious views remains an open one.

The Facts

Jack Phillips is a baker who owned and operated Masterpiece Cakeshop, Ltd., a bakery located in a suburb of Denver, Colorado. Phillips is a devout Christian who believes that God intended marriage to be only between one man and one woman.

In 2012, two men in a same-sex relationship entered Phillips’ bakery and told Phillips that they were interested in ordering a cake for their wedding. Phillips purportedly informed the couple that while he would make a birthday cake or sell cookies to them, he could not bake a cake for their wedding because it was against his religious beliefs. To Phillips, baking a wedding cake for a same-sex marriage involved creating something for an event that goes directly against his reviews about the teachings of the Bible, and therefore would be equivalent to a personal endorsement of and participation in the celebration of a same-sex relationship which is contrary to his deeply held religious beliefs.

The same-sex couple filed a discrimination claim against Phillips in the Colorado Civil Rights Commission alleging that Phillips violated the state’s law that prohibits places of public accommodation, like restaurants, hotels, and bakeries, from discriminating against an individual or group because of sexual orientation. The complaint alleged that the couple had been denied “full and equal service” at the bakery because of their sexual orientation. The Commission’s investigation revealed that Phillips had refused to sell custom wedding cakes to about 6 other same-sex couples. The Commission found in the couple’s favor, rejecting Phillips argument that his refusal was not sexual orientation discrimination, but rather a constitutionally protected form of expression of his opposition to same-sex marriage on the basis of his sincerely held religious views.

The Supreme Court Decision

In a decision issued by Justice Kennedy, the Supreme Court ruled 7-2 to overturn the Commission’s finding.

As a preliminary matter, the Court acknowledged the competing rights at issue in these types of cases. The Court pointed out that gay persons and gay couples cannot be treated as social outcasts or inferior in dignity and worth, and that the Constitution clearly protects their civil rights, but the Court also stated that religious and philosophical objections to gay marriage can constitute Constitutionally protected forms of expression. The Court also asserted that there were limits to the application of these religious beliefs in the public accommodation context. The Court clearly stated that “while those religious and philosophical objections are protected, it is a general rule that such 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 laws.” The Court explained that while a member of the religious clergy could not be compelled to perform a same-sex marriage, if public accommodations who provide goods and services for weddings or marriages were permitted to refuse service to a same-sex couple, it could result in “a community-wide stigma inconsistent with the history and dynamic of civil rights laws that ensure equal access to goods, services and public accommodations.”

After laying out these general legal principles invoked in these cases of conflicting civil rights, the Court found in favor of the baker on the narrow basis that the state Commission failed to decide the case with the required neutrality towards Phillips’s religious views. In fact, worse than simply failing to demonstrate neutrality toward Phillips’s religious views, the Supreme Court found that the Colorado Commission demonstrated actual hostility toward Phillips’s religious beliefs and ruled in favor of the baker on this basis.

For example, the Court found troubling that a Commissioner declared during a hearing that people had misused freedom of religion to justify such atrocities as the holocaust and slavery. To the Supreme Court, this comment cast doubt on the fairness and impartiality of the Commission and evidenced a hostility against the baker’s religious views.

The Court also found it troubling that the Commission made inconsistent rulings in other related cases. On at least three other occasion, when the Colorado Civil Rights Commission considered cases where bakers refused to create cakes expressing disapproval of same-sex marriage on religious ground, the Commission found in favor of the bakers (i.e. it found that the bakers could refuse to bake a cake critical of same sex marriage).

For these reasons, the Court concluded that the Commission’s consideration of Phillips’ case was not tolerant or respectful of his religious beliefs as required by the Constitution, and it therefore reversed the Commission’s decision.

The Takeaway

The Court’s decision leaves open how the Supreme Court would decide a similar case that was handled at the Commission level with the required neutrality toward religion. With that said, the reasoning of the court in Masterpiece provides some insight about where the Court might draw the line on these types of cases.

The Court seemed to distinguish between a general refusal to make or serve the baked products available for sale to the public to gay or lesbian individuals or same-sex couples and a refusal to bake a wedding cake for a same-sex marriage. The former would present a “strong case” of a denial of goods and services that goes beyond the protected rights of a baker to decline service for religious reasons, according to the Court, while the latter offered a closer question of permissible, constitutionally protected religious expression. These statements may indicate that the Supreme Court would not uphold a public accommodation generally denying access to its goods and services to a gay or lesbian individual or same sex couple, but that it would allow a public accommodation to refuse to provide a specific service for a same-sex marriage to the extent based on sincerely held religious beliefs.


Of course, with the retirement of Justice Kennedy, who often decided with the more liberal members of the court on social matters like gay rights (he wrote the decision on gay marriage), the Supreme Court is probably much more likely to allow public accommodations to deny service to members on the public if such denial is based on religious views. With that said, in the absence of a specific ruling by the Supreme Court in that regard, restaurants and other public accommodations must be very careful in denying service to anyone based on personal characteristics like sexual orientation.