By Nicole Kennedy

June 26, 2018

Should a baker with a religious commitment to traditional marriage be forced to design and bake a wedding cake to celebrate the marriage of a same-sex couple? That was the main question in Masterpiece Cakeshop v. Colorado Civil Rights Commission. In a 7-2 ruling, the U.S. Supreme Court did not so much affirm Christian baker Jack Phillips’ stance against baking the cake as it disavowed the decision against him by the Colorado Civil Rights Commission. The Commission acted with bias against religion, the Supreme Court said, and its decision had to be thrown out. What would an unbiased decision have been? The Court did not rule on this, however the various opinions give some hints about how our society should deal with the apparent clashes between LGBT rights and religious freedom.

This complicated case began back in 2012, when Charlie Craig and Dave Mullins visited Masterpiece Cakeshop and asked Jack Phillips to bake them a wedding cake. At the time, same-sex marriage was unlawful in Colorado. However, Colorado had a public accommodation law, the Colorado Anti-Discrimination Act (CADA), which prohibited places of public accommodation, broadly defined to include any place of business, with an exception for places of worship,from discriminating on the basis of sexual orientation.

Did Phillips violate the Colorado Anti-Discrimination Act when he declined to design and bake the cake to celebrate the same-sex wedding of Craig and Mullins, who were planning to wed in the state of Massachusetts? Phillips made it clear that he was happy to sell them a pre-made cake or create a non-wedding cake for either of them. He refused, however, to use his talents to celebrate and support something he considered false and wrong: a same-sex wedding. Similarly, Phillips also refused to sell Halloween cakes, and would not sell a cake celebrating a same-sex marriage to a heterosexual person who bought it as a surprise for a coworker. In the view of Phillips and his legal team,his case was a First Amendment issue, a matter of letting Phillips live by his religious convictions under the Free Exercise clause and of keeping the government from dictating expression under the Free Speech clause.

The Colorado Civil Rights Commission, a quasi-judicial board formed to investigate discrimination claims, however, held that Phillips had discriminated against Craig and Mullins. This decision did not mention a clash between religious freedom and LGBT rights, but only mentioned illegal discrimination. Phillips unsuccessfully appealed to a Colorado state court, lost in the Colorado Court of Appeals, and then petitioned the United States Supreme Court to review the Colorado Civil Rights Commission’s ruling. The Supreme Court agreed to take the case in June 2017 and heard oral arguments the following December.

On June 4, 2018, the Supreme Court released its decision. The Court’s holding is incredibly narrow in a legal sense. Instead of vindicating Phillips’ decision or creating a general principle of how to balance or together fulfill religious freedom and LGBT rights, the Court majority focused on the Colorado Commission’s anti-religious bias in making its decision, a bias that the other courts had ignored.

What was that bias? According to Justice Anthony Kennedy’s majority opinion, the comments of two of the Commissioners showed unacceptable hostility toward Phillips’ beliefs. One Commissioner, for example, classified Phillips’ religious beliefs as “one of the most despicable pieces of rhetoric that people can use.” This Commissioner compared Phillips to Nazis who used religion to justify their evil acts. According to the majority opinion, a different set of Commission decisions reveals a pattern of bias against religion. In a group of other cases known as the Jack cases, the Commission held that bakers legally may decline to create cakes containing Christian, pro-traditional marriage messages, refusing, for instance, to make a cake shaped like a Bible with a crossed-out image of two men holding hands. According to Kennedy, the Commission’s differing approaches in the Jack cases and the Phillips case reveals an impermissible bias toward the pro-LGBT agenda and against religion.

The Supreme Court thus held that because the Commission was impermissibly biased against religious, its decision had to be tossed out. What if the Commission had not been biased but instead had fairly considered Phillips’ refusal? As Professor Robin Fretwell Wilson noted during an interview with Christianity Today, the Commission’s animus complicates the holding. Additionally, this case arose in 2012, before same-sex marriage was legal in Colorado. Ever since the 2015 Obergefell v. Hodges decision, same-sex marriage has been legal in Colorado and everywhere else in the United States. Would Phillips’ decision then amount to denying someone of a service they have a legal right to enjoy? If so, wouldn’t that be a violation of their rights—an instance of illegal discrimination?

There is significant division in our courts, legislatures, and public opinion between those who would rule that protection against sexual orientation discrimination must always win over religious freedom and others who seek an outcome that allows everyone to live by their deeply-held convictions. Justice Kennedy’s majority opinion strongly supports the legitimacy of traditional religious convictions about marriage while also strongly saying that government must protect LGBT people from unjust discrimination.

Justice Kennedy also wrote the majority opinion in Obergefell, the decision legalizing same-sex marriage. In that decision, he stated that “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” Consequently, courts can and should protect LGBT rights, but also have a duty to protect religious freedom. Some legal commentators, such as Fretwell Wilson, have detected in his words in Obergefell a plea for lawmakers to step in and draw the appropriate lines instead of leaving these matters to courts. Now, Kennedy and other Supreme Court justices recognize that Masterpiece Cakeshop holds a crucial place in the ongoing dialogue about religious freedom and LGBT rights — a discussion that is only beginning. As Justice Gorsuch wrote in his concurrence, “It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.”