When the Supreme Court opened its October term last year, Masterpiece Cakeshop v. Colorado Civil Rights Commission—the “gay wedding cake” case—loomed as a blockbuster, a major step toward resolving conflicts between religious freedom and anti-discrimination laws protecting LGBT people in general and same-sex married couples in particular.
But someone left the cakeshop in the rain.
On Monday, the Supreme Court produced the melted remnant. By a contentious majority of 7–2, the Court held for the religious baker, Jack Phillips, who had refused to sell a cake to a same-sex couple, Charlie Craig and Dave Mullins, for a post-hoc celebration of their out-of-state wedding. It used a rationale applicable only to this case, which sheds no light on the larger civil-rights issues.
It was obvious at oral argument in December that the case had what Supreme Court insiders call “vehicle problems”—meaning that the facts and the record did not clearly tee up the issue the parties were seeking to resolve. (Some years ago, The New York Times’ Adam Liptak cogently explained the concept of a “clean vehicle.”)
On Monday, a majority opinion by Justice Anthony Kennedy listed the reasons why this case turned out to be a lemon. First, is what the couple asked for—a cake for a private celebration—really “speech” or “free exercise of religion” at all? Second, the record was unclear whether Phillips refused only to bake a cake with a “wedding” message or refused to provide any cake at all for Craig and Mullins’s celebration. Third, the events occurred before the Court’s decision, in Obergefell v. Hodges, that same-sex couples have a right to marry. Thus, Phillips in part based his denial on the fact that, at the time, Colorado did not permit same-sex marriage—that “the potential customers ‘were doing something illegal.’” Fourth, as Justice Kennedy pointed out at oral argument, the record was muddled by anti-religious statements made by state officials who considered the case below.
And finally, though the Court did not discuss this aspect, Phillips’s attorneys (from the religious-right legal powerhouse Alliance Defending Freedom) and the Trump administration made extravagant claims. They suggested that the Court skip the religious-freedom issue altogether and decide the case on pure free-speech grounds. Had it done so, a decision for Phillips would have given constitutional protection to an unknown number of discriminations against LGBT people and couples, and indeed—by the government’s own concession—called into question laws protecting women and racial minorities.
All told, the Court would have done well to do to Cakeshop what it had done the week before to an obscure case with a muddled record called City of Hays, Kansas v. Vogt—dismissed the writ of certiorari as “improvidently granted.” A better case—with a clean record, decided after Obergefell, and perhaps with more careful briefing—would be sure to come along.
Instead, the Court decided the case, but on the narrowest grounds imaginable—that the Colorado Civil Rights Commission during its consideration of the case had shown anti-religious bias. The result was a decision that provides almost no guidance for lower courts facing similar cases. “In this case,” Kennedy wrote, “the adjudication concerned a context that may well be different going forward.” Thus, “the outcome of cases like this in other circumstances must await further elaboration in the courts.”
The action in the Cakeshop opinions, in fact, involved jockeying for position in those future cases between the moderate liberals, led in this case by Justice Elena Kagan, and the hard-right conservatives, led here by Justice Neil Gorsuch.
Kennedy’s opinion began by setting out his vision of the conflict of two constitutional principles. “The first is the authority of a state … to protect the rights and dignity of gay persons who are, or wish to be, married”; the second is “the right of all persons to exercise fundamental freedoms under the First Amendment.” Jack Phillips claimed the commission’s order violated his rights of free speech and free exercise; Kennedy found him half right. The opinion was written entirely in terms of “free exercise” of religion—a narrower ground than the free-speech argument.
Kennedy found no problem with civil-rights statutes protecting gays and lesbians; the opinion repeated long-established religion that religious scruples do not necessarily overcome civil-rights laws. (Kennedy even cited Newman v. Piggie Park Enterprises, a 1968 case that rejected a claim for religious exemption for a barbecue joint whose owner asserted that serving black people offended his religion.) Instead, Kennedy said, the Colorado Civil Rights Commission, in its hearing, did not afford Phillips “neutral and respectful consideration of his claims” for religious exemption.
As evidence, Kennedy cited statements by commissioners “that religious beliefs cannot legitimately be carried into the public sphere or commercial domain.” He coupled those with another statement in which a member said “freedom of religion and religion has been used to justify all kinds of discrimination through history, whether it be slavery, whether it be the Holocaust.” That kind of claim, the commissioner said, “is one of the most despicable pieces of rhetoric that people can use to … hurt others.”
Kennedy saw this as anti-religious bias in “at least two distinct ways: by describing [religion] as merely rhetorical” and by comparing it to “defenses of slavery and the Holocaust.” These statements infected the judgment below with hostility to religion, he said.
In addition, Kennedy said, the commission had earlier dismissed complaints brought against three other bakers by a conservative Christian named William Jack. Jack asked them to create cakes depicting gay couples with a cross-out mark, and Bible verses denouncing homosexuality. As Kennedy read the record, the commission had dismissed Jack’s complaint because it found the messages “offensive.” The decision, thus, was based on “the government’s own assessment of offensiveness,” which the First Amendment forbids.
The latter part of the opinion seems fairly dubious to me. I don’t read the commission’s language as he does; I read it as saying that the bakers refused the message because they found it offensive. Under a proper civil-rights law, businesses cannot discriminate against a customer because of his or her race, or religion, or sexual orientation; businesses, however, aren’t bound by the First Amendment and can reject messages—as long as they would reject the same message from any customer.
The commission below found that Masterpiece had denied a wedding cake to Craig and Mullins because they are gay. The bakeries in the Jack cases had refused only a very specific cake—and not because Jack was a Christian but because the specific message offended them. Civil-rights laws protect individuals, not messages.
This part of Kennedy’s opinion set off the battle of the concurrences. Kagan, joined by Justice Stephen Breyer, warned lower courts that discrimination against messages is not religious discrimination. Phillips denied service to Craig and Mullins because they are gay. The other bakers would not bake an anti-gay cake for anyone of any race, creed, color, or sexual orientation, she said. Thus, “the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else.”
Gorsuch, joined by Alito, argued that this was a distinction without a difference. He cited first the bakers’ statements that they would not make anti-gay cakes for anyone, then a statement by Phillips that he “would have refused to create a cake celebrating a same-sex marriage for any customer, regardless of his or her sexual orientation.” Thus, Gorsuch wrote, “the two cases share all legally salient features.” A lot will ride on which of these arguments future courts find most persuasive.
Justice Clarence Thomas wrote separately to say that the case should have been decided on free-speech grounds. Gorsuch joined this opinion as well, signaling his openness to this broader claim.
Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, dissented. In her view, the commission’s decision was entirely proper. First, “Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s.” Second, the Jack case and Masterpiece are quite different, she argued: “While Jack requested cakes with particular text inscribed, Craig and Mullins were refused the sale of any wedding cake at all. They were turned away before any specific cake design could be discussed.”
So after prolonged labor, on Monday the Court brought forth what can only generously be called a mouse. The issue should have been saved for a better case. That it wasn’t, I suspect, results from Kennedy’s interest in this particular set of facts. Twenty-six years ago, in Church of the Lukumi Babalu Aye v. City of Hialeah, he wrote a major opinion on religious animus that relied in part on public statements of local officials. He may not have been able to resist returning to, and reaffirming, that opinion in the autumn of his career.