Masterpiece Cakeshop v. Colorado Civil Rights Commission:  What Was and Wasn’t Decided

Mary L. Bonauto Civil Rights Director, GLBTQ Legal Advocates & Defenders (GLAD) and Jon W. Davidson Chief Counsel, Freedom for All Americans Education Fund

After conferencing the petition more than a dozen times,[1] the U.S. Supreme Court granted a writ of certiorari in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission on June 26, 2017.[2] Some of us were surprised. A bakery and its owner had asked the high court to review a Colorado appellate ruling rejecting their claims that the First Amendment’s free exercise and free speech guarantees entitled them to refuse to sell wedding cakes to same-sex couples that they sold to other couples, notwithstanding the state’s public accommodations nondiscrimination law. That ruling was consistent with longstanding precedents regarding both freedom of expression and the free exercise of religion.[3] Lower courts had readily—and unanimously—rejected similar claims,[4] and even the Supreme Court had denied certiorari in an analogous case just three years earlier.[5] Given the Court’s more recent resetting of the boundaries in cases in which freedom of religion or expression had been raised to challenge government action, however,[6] would this case become a vehicle for curtailing nondiscrimination protections or minimizing marriages of same-sex couples?[7] While the Court’s decision does not answer those questions, it embraces long-standing rules in this area and provides important guidance for the road ahead.

I. Background

The facts of Masterpiece Cakeshop are relatively simple and largely undisputed. On July 19, 2012, Charlie Craig and David Mullins, accompanied by Craig’s mother, entered the doors of Masterpiece Cakeshop, a business that sells baked goods to the general public out of a Denver suburb storefront. Craig and Mullins had decided to get married, but Colorado at the time banned marriage by same-sex couples,[8] and U.S. v. Windsor and Obergefell v. Hodges were not yet the law of the land.[9] The couple accordingly planned to travel to Massachusetts, where they would marry, and have a reception for friends and family back home afterwards.

Like most engaged couples, Craig and Mullins wanted a cake for their reception. They chose to go to Masterpiece Cakeshop on the recommendation of their reception planner. Upon entering the store, they sat down with Jack Phillips, the bakery’s owner, and explained that they wanted to buy a cake for a wedding reception. When Phillips asked them whom the cake was for, Craig and Mullins told him it was for them. Phillips responded that, while his bakery would sell baked goods to lesbian and gay customers for other purposes, it would not sell them baked goods for weddings.

A horrible silence followed. Mullins recalls that they felt dehumanized, mortified, and embarrassed, and they quickly left the store. As they later explained to NBC News, for Craig,

the interaction was devastating. He remembered how bullies had taunted him for being gay in the small Wyoming town where he grew up. He later attended the University of Wyoming, around the same time gay student Matthew Shepard was murdered. He moved to Denver after he graduated, hoping to find sanctuary in the liberal city encircled by mountains and high plains.[10]

Craig never expected to be shunned there because of his sexual orientation.

The next morning, Craig’s mother called the bakery to ask Phillips why he had refused to sell her son a cake. Phillips said that the bakery had a policy of refusing to provide baked goods for weddings of same-sex couples, based on his personal religious beliefs. Craig and Mullins later learned that Masterpiece Cakeshop had turned away at least five other same-sex couples who had sought to buy baked goods for their wedding receptions or for commitment ceremonies, including one couple who simply wanted to order cupcakes.

Because the bakery refused to provide any kind of cake for the couple’s reception, there was no discussion of what the couple wanted the cake to look like or how it might be decorated. Nonetheless, as the Supreme Court stated, the parties disagreed about the extent of the baker’s refusal to provide service, that is, whether it was limited to putting particular words or symbols on a cake, or “a refusal to sell any cake at all.”[11]

II. The Colorado Legal Proceedings

Longstanding Colorado state law prohibits public accommodations—including businesses that open their doors to the public such as Masterpiece Cakeshop—from refusing service to individuals based on personal characteristics like race, religion, or sexual orientation.[12] Craig and Mullins filed a complaint with the state. Following an investigation and hearings, the Colorado Civil Rights Commission determined that the bakery and Phillips violated Colorado law when they refused to sell Craig and Mullins a product that the bakery regularly sold to other couples.[13]

The Commission rejected the bakery’s and Phillips’s defense that they did not discriminate because they were willing to sell goods other than wedding cakes to lesbian and gay customers, ruling that Colorado law required that lesbian and gay customers be offered any goods and services that the bakery “otherwise offers to the general public.”[14] In other words, a business can decide what goods or services it will create or sell—and here, the bakery refused “to bake cakes containing alcohol, cakes with racist or homophobic messages, cakes criticizing God, and cakes celebrating Halloween,”[15]—but the state’ s public accommodations anti-discrimination law means that businesses cannot limit to whom they will provide those goods or services based on a customer’s sexual orientation or other protected characteristic.

The bakery challenged the Commission’s decision by appealing to the Colorado Court of Appeals (the state’s intermediate appellate court), which unanimously affirmed the Commission’s decision.[16] The Court of Appeals rejected the bakery’s argument that it and Phillips had not discriminated, in the words of the Colorado Anti-Discrimination Act (CADA), “‘because of’ [Mullins’ and Craig’s] sexual orientation” but instead because of the couple’s intended conduct of “entering into a marriage with a same-sex partner” and a message of personal approval of the marriage that baking the cake would allegedly convey.[17] The court pointed out that the U.S. Supreme Court had previously rejected such a distinction between the status of being gay and conduct closely associated with that status.[18] It reasoned that, “[b]ut for their sexual orientation, [the couple] would not have sought to enter into a same-sex marriage, and but for their intent to do so, Masterpiece would not have denied them its services.”[19]

The Colorado Court of Appeals also rejected the bakery’s argument that application of CADA in this situation infringed its and Phillips’s federal and state constitutional rights of freedom of speech by compelling them to convey a celebratory message about same-sex couples marrying, in conflict with Phillips’s beliefs. The court concluded that the bakery and Phillips would not be conveying a message supporting marriage equality merely by abiding by state law and serving all customers equally. It held that, to the extent any message at all is sent by a wedding cake, it is more likely to be perceived as the message of the couple whose wedding it is, not the bakery that provided it.[20] The court additionally stated the bakery could post a disclaimer in the store or on the internet indicating that the provision of its services does not constitute an endorsement or approval of its customers or their celebrations, and further emphasizing that its baked goods do not express a message of approval by the company or its owner of any particular customer or event.[21]

Masterpiece Cakeshop further argued that application of Colorado’s anti-discrimination law violated its and Phillips’s federal and state constitutional rights of free exercise of religion. The Colorado Court of Appeals rejected this claim as well. First, it found that Colorado’s anti-discrimination law is a permissible, neutral law that applies equally to all businesses, and that, in accord with prevailing law, an incidental burden on religion does not support a free exercise claim.[22] Second, it held that freedom of religion does not provide a right to discriminate against or otherwise harm others. The court further held that application of Colorado’s law reasonably furthers a compelling interest in ending discrimination, which causes economic and dignitary harms to the state and its residents.[23]

After the Colorado Supreme Court refused to hear the bakery’s further appeal,[24] Masterpiece Cakeshop petitioned the U.S. Supreme Court for certiorari. The Court agreed to review the case and heard argument on December 5, 2017.

III. The Supreme Court Decision

The Supreme Court issued its decision on June 4, 2018.[25] By a 7-2 vote, it reversed the judgment below, but it did so based not on the compelled speech and free exercise grounds that had been the focus of the parties’ briefing and the 95 amicus briefs submitted to the Supreme Court after certiorari was granted. Instead, Justice Kennedy, in one of his final opinions for the Court, reversed based on the conclusion that Masterpiece Cakeshop and Phillips had been denied “neutral and respectful consideration” of their claims in the Colorado proceedings,[26] and that the Colorado Civil Rights Commission’s treatment of their claims thereby “violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”[27]

A. What the Court Said About Governing Principles and the Legal Arguments

Before considering that holding, it is important to appreciate how the Court conceptualized the case and what it said about the principal issues that were on appeal. First, the Court described the case as involving “reconciliation” of two principles: state authority “to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services,” and the “right of all persons to exercise fundamental freedoms under the First Amendment.”[28]

As to the first principle, the decision vindicates lesbian, gay, and bisexual (and presumably transgender) people’s right to equal treatment, stating:

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight by the courts.[29]

Taking the equal treatment principle to a concrete level, the Court approvingly cited the bakery’s statement at oral argument that a baker’s refusal to “sell any goods or any cakes for gay weddings” would be a denial of goods and services beyond any protected rights of the baker subject to an anti-discrimination law.[30]

As to the second principle, the Court stated that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”[31] Yet, these controversies should be rare, the Court suggests, as “there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.”[32]

All told, however, the Court did not reconcile those principles because it ruled on the narrower grounds that the state civil rights commission had not acted with religious neutrality in adjudicating the case.[33] It left for another day questions of “the confluence of speech and free exercise principles” and the “delicate question” of when “free exercise of religion must yield to a valid exercise of state power.”[34]

B. Free Exercise of Religion

Although the Court found no need to reconcile the principles in this case, it set forth generally applicable parameters for future disputes. Crucially, the Court reaffirmed its 50-year old precedent in the historically unique context of race as embracing discrimination against LGBT people as well: “It is a general rule that [religious] 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 law.”[35]

Alongside Newman v. Piggie Park Enterprises, Inc., the Court cited Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston,[36] a case relied on by the bakery and its supporters to cram cake-baking in the commercial marketplace into the speech paradigm of the privately organized and inherently expressive parade at issue in Hurley. But the Court used Hurley for a different point: that there is nothing per se problematic about sexual orientation anti-discrimination laws, which are “well within the State’s usual power to enact” and “do not, as a general matter, violate the First or Fourteenth Amendment.”[37] The Court repeated that point, characterizing as “unexceptional” the government’s power to enact anti-discrimination laws and their scope in “protect[ing] gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”[38]

Specifically as to the claim that the First Amendment’s Free Exercise Clause provides a constitutional right for those seeking exemptions from public accommodation anti-discrimination laws, the majority opinion reiterated that “[t]he Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws.”[39] No justice dissented from the majority opinion’s reaffirmation of this longstanding precedent.[40]

The majority opinion built on the Court’s landmark gay-rights opinions in Romer v. Evans,[41] Lawrence v. Texas,[42] United States v. Windsor,[43] and Obergefell v. Hodges,[44] to signal that “gay persons and couples cannot be treated as social outcasts or as inferior in dignity and worth,” and must be allowed to “exercise . . . their civil rights,” and “freedom on terms equal to others.”[45] Accordingly, lower courts should analyze these claims by according “great weight and respect” to claims by LGBT people seeking to “exercise . . . their freedom on terms equal to others.”[46] In so ruling, the Court effectively rejected the arguments advanced in support of the bakery that trivialized the stigma and dignitary harm from being refused service or urged that no harm occurs at all when alternative service providers are available.[47]

The Court set a high bar for free exercise claims that might even be considered constitutionally protected in part because of the community-wide harms that accepting such claims could cause—harms that anti-discrimination laws exist to guard against. The Court first posited that clergy members who object to marriages of same-sex couples cannot be compelled to perform a ceremony because of free exercise of religion guarantees.[48] (Of course, clergy members are not public accommodations under Colorado’s law or the similar laws of other states.) The Court’s real point was to state why any “exception” must be “confined,” or else “a long list of persons” who provide goods and services for weddings could refuse to do so for gay persons, “resulting in a community-wide stigma” of gay people “inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”[49] Likewise, the Court rejected as “impos[ing] a serious stigma”  signage that would refuse services for “gay marriages.” [50] The Court not only recognized the possibility of widespread service denials if religiously-based service refusals were permissible, but that such refusals would effectively subordinate LGBT people and undermine the core purpose of anti-discrimination laws in ensuring equal access to and participation in places of public accommodation.

What is not obvious from the majority opinion but matters to future cases is the Court’s adherence to the status quo in the face of an intense assault on anti-discrimination laws. For example, by aligning this case with Piggie Park, the Court implicitly rebuffed arguments that the bakery discriminated based on the conduct of the customers—that is, Craig and Mullins’s celebration of their wedding, rather than on their sexual orientation or “status.”[51] The majority opinion also did not embrace several direct attacks on anti-discrimination laws, such as challenges to the conventional rationales and compelling interests served by anti-discrimination laws[52] and to the scope of such laws.[53]

Still, there remains at least a theoretical possibility of a future “constrained” religious exemption to anti-discrimination laws. Crafting such an exemption would be onerous, given the “all but endless” factual complications involved in determining whether a free exercise claim might exist, including whether a baker refused to attend the wedding and cut the cake in a particular way, or refused to put “certain religious words or decorations on the cake.”[54] Also potentially looming over all of this is the future of the holding laid down in Employment Divison, Dept. of Human Resources of Oregon v. Smith, that “a neutral and generally applicable law will usually survive a constitutional free exercise challenge.”[55] The bakery, in a footnote, argued that Smith should be “reevaluated” if that case did not protect Phillips,[56] and others openly criticized Smith or urged its abandonment.[57] Only Justice Gorsuch explicitly referred to Smith as purportedly “remain[ing] controversial in many quarters.”[58]

C. Free Speech

With respect to the argument that the First Amendment’s Free Speech Clause can provide a defense to those who object to complying with public accommodations anti-discrimination laws, the Court did not hold that wedding cakes are speech or expression entitled to First Amendment protection.[59] In a terse discussion, Justice Kennedy called the free-speech aspects of the case “difficult.”[60] He noted that “few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech,” and yet “the application of constitutional freedoms in new contexts can deepen our understanding of their meaning,”[61] a point he also made in his LGBT-rights cases.[62] He also mused that, “[i]f a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all.”[63]

Justice Kennedy further wrote, as noted above, that “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression,”[64] and quoted from his opinion for the Court in Obergefell that “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”[65] By basing the decision in Masterpiece Cakeshop on the Court’s perception of the Colorado Civil Rights Commission’s hostility toward religion, however, the Court did not further specify whether, or in what circumstances, these objections to the marriage of same-sex couples might justify violating public accommodations laws. Instead, the majority opinion ends as it began, with a call for “tolerance, without undue disrespect for religious sincere beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”[66]

While there was little appetite overall for the speech arguments, Justice Thomas’s concurrence in the judgment, joined by Justice Gorsuch, took issue with the Colorado Court of Appeals’s conclusion that Phillips’s conduct was neither expressive nor protected speech.[67] As the bakery argued, Justice Thomas asserted that the “creation of custom wedding cakes is expressive;” that Phillips’s message communicated through the cake is that a wedding has occurred, a marriage has begun, and the couple should be celebrated; and that, by discussing the engaged couple’s desires and delivering the cake to the reception, “Phillips is an active participant in the wedding celebration.”[68] Justice Thomas concluded that strict scrutiny should be applied because, in his view, Colorado was punishing Phillips because of the content of his speech, which Justice Thomas described as “refus[ing] to create custom wedding cakes that express approval of same-sex marriage.”[69] Because the Colorado Court of Appeals did not address whether strict scrutiny could be satisfied, Justice Thomas stated that he “will not do so in the first instance,” but nonetheless asserted that protecting dignitary harms is not sufficient to overcome free speech, which he claimed cannot be suppressed due to audience reaction or offense.[70]

Justice Gorsuch’s concurrence (joined by Justice Alito) likewise found that provision of a wedding cake conveys a message, because no one can “reasonably doubt that a wedding cake without words conveys a message.”[71] In Justice Gorsuch’s view, whether there are “[w]ords or not and whatever the exact design,” a “wedding cake [that] is made for a same-sex couple . . . celebrates a same-sex wedding” and Phillips should be able to withhold that approval both as a matter of his religious faith, and as a matter of protected speech.[72] Accordingly, Justice Gorsuch contended, Phillips was justified in refusing to engage in the act of making the wedding cake based on his religious views of approval or disapproval of the wedding at hand—regardless of what the cake looks like. This assertion rests on the supposition that a wedding cake made for a same-sex couple’s reception is somehow different from the exact same wedding cake made for a different-sex couple’s reception.  Whether in a future case Justices Gorsuch, Alito, and Thomas can convince Chief Justice Roberts and Justice Kennedy’s successor of this framing remains to be seen.

D. The Religious Non-Neutrality Aspect of the Case

Returning to the opinion’s actual grounds for reversal of the decision below, Justice Kennedy found that three aspects of the Colorado Civil Rights Commission’s treatment of the bakery’s claims had “elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated [the bakery’s] objection.”[73]

1. Timing

The first concern was the context of the times when the dispute arose. The dispute arose in 2012, and the Court says that Phillips’s “dilemma was particularly understandable” given that Colorado barred marriages of same-sex couples in 2012, and the Windsor and Obergefell decisions governing access to marriage and respect for existing marriages had not yet been decided.[74]

2. Commissioners’ Comments

The timing observation feeds into the second point, namely the comments of two Commissioners before and after ruling on the merits, that the Court understood as expressing “hostility toward the sincere religious beliefs that motivated [Phillips’s] objection.”[75] One Commissioner had stated that the baker could “believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state,’” and also that “he needs to look at being able to compromise.”[76] A second commissioner (months later) stated 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, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. 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.[77]

Justice Kennedy acknowledged the first Commissioner’s comments were ambiguous in that they might simply mean “that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views.”[78] But the Court found it “more likely,” that these comments “might be seen as inappropriate and dismissive . . .  [and] showing lack of due consideration for [the baker’s] free exercise rights and the dilemma he faced,” particularly in light of the second Commissioner’s comments.[79] Justice Kennedy stated that describing Phillips’s faith as “despicable . . . rhetoric” disparages his faith both by “describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. . . . This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law.”[80] Justices Kagan and Breyer were also troubled by these comments, because “state actors cannot show hostility to religious views.”[81]

Whatever one may think of the comments, and distinctions can certainly be made, there is no basis from the Masterpiece Cakeshop ruling for arguing that mere enforcement of anti-discrimination laws amounts to religious hostility. As to the comments, it is worth noting that the second Commissioner’s comment came two months after substantive decisionmaking concluded. Based on precedent about religious prejudice, the four independent layers of decisionmaking in the state proceedings, and the lack of evidence that “prejudice infected the determinations of the adjudicators in the case before and after the Commission,” the dissent argues that the few comments should not “overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins.”[82]  Moreover, the comments about “rhetoric” can be understood more about seeking to use beliefs as a defense to conduct that harms others than a direct attack on Phillips’s belief system itself.

3. (Claimed) Disparate Treatment of Phillips and Other Bakers

a) Majority Opinion

Justice Kennedy also relied on what he said “could reasonably be interpreted” as inconsistencies between how the Colorado Civil Rights Commission addressed “whether speech was involved” in the case involving Masterpiece Cakeshop and the three other cases of an individual—William Jack—who was a potential bakery customer but was denied cakes with anti-gay messages by other businesses. In the so-called “Jack cases,” Jack entered bakeries and requested two cakes,

made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] . . . “God hates sin. Psalm 45:7” and on the opposite side of the cake “Homosexuality is a detestable sin. Leviticus 18:2.” On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’ [Jack] requested [these words]: “God loves sinners” and on the other side “While we were yet sinners Christ died for us. Romans 5:8.”[83]

Justice Kennedy questioned why, in each of the Jack cases, the Commission ruled in favor of the bakeries that had rejected the cake order, whereas the Commission ruled against Masterpiece Cakeshop.[84] First, he pointed to the fact that the Commission ruled against Phillips on the ground that any message that might be expressed by the wedding cake would be attributed to the customer rather than the baker, thereby eviscerating his speech claim, whereas in the Jack cases, the Commission did not address that issue.

Second, Justice Kennedy noted that, at the Colorado Court of Appeals, Phillips had “protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs,” and Justice Kennedy’s majority opinion concluded that “the Commission had treated the other bakers’ conscience-based objections as legitimate,” while treating Phillips’s objections as illegitimate, thus sitting “in judgment of his religious beliefs themselves.”[85]

Finally, the Court of Appeals had rejected the assertion of double standards because “[the other bakeries] in Denver did not discriminate against a Christian patron on the basis of his creed” when they refused to create the requested cakes, but because “the Division found that the bakeries . . . refuse[d] the patron’s request . . . because of the offensive nature of the requested message.”[86] Justice Kennedy seized upon the characterization of the messages on the cakes as “offensive” to complain 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.”[87]

Looking to the future, the Court set forth factors drawn directly from Church of Lukumi Babalu Aye, Inc. v. Hialeah,[88] that are relevant to the assessment of government neutrality.  These include the historical background of the decision as well as the immediate steps leading to it, and the legislative or administrative history of the policy, including contemporaneous statements of the decision-making body.[89]

All of this said, it is crucial to note that the majority opinion does not go so far as to say that the Phillips and Jack cases are subject to the same rules. Instead, it says Colorado was “inconsistent as to whether speech was involved,” which is “quite apart from whether the cases should ultimately be distinguished.”[90] And to be sure, there are forceful distinctions aplenty to be made, as addressed in the concurring opinion of Justice Kagan and the dissent, discussed below.

b) Concurring and Dissenting Opinions

It is because the majority suggests that the Phillips and Jack cases might be distinguished in a regime which, in its view, fairly applies the law, that the concurring and dissenting opinions spar over the mode of analysis to be applied in future cases. Justice Gorsuch (joined by Justice Alito) found the two cases indistinguishable, sharing both “all legally salient features”—such as refusing the service of producing a cake they would not sell to anyone based on personal conviction, and having the same effect of denying service to a person with a protected trait.[91]

Justice Kagan’s concurrence (joined by Justice Breyer) as well as Justice Ginsburg’s dissent (joined by Justice Sotomayor) demonstrate the appropriate legal analysis for distinguishing the Phillips and Jack cases, something the Court found lacking in the Colorado adjudications.[92] For one, the Phillips and Jack cases can be distinguished by “a plain reading and neutral application of Colorado law.”[93] Phillips rejected Craig and Mullins’s request for a wedding cake because of their sexual orientation, while he regularly sold wedding cakes to other customers. By contrast, Jack requested cakes “denigrating gay people and same-sex marriage” that the bakers would not make for any customer, regardless of the customer’s religion. The difference in result was therefore warranted as well: there was no discrimination when the bakers treated Jack “the same way they would have treated anyone else” but Phillips denied the “‘full and equal enjoyment’ of public accommodations irrespective of their sexual orientation” by refusing wedding cakes he would otherwise produce only to same-sex couples.[94]

As to the issue of “offensiveness” of the message, Justice Ginsburg distinguishes between the “offense” Phillips experienced “where the offensiveness of the product was determined solely by the identity of the customer requesting it,”  and the offense of the three bakeries in the Jack cases who “object[ed] to the product . . . due to the demeaning message the requested product would literally display.”[95]  Since Craig and Mullins “mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips would have sold,”[96] the,

Colorado Court of Appeals did not distinguish Phillips and the other three bakeries based simply on its or the Division’s finding that messages in the cakes Jack requested were offensive while any message in a cake for Craig and Mullins was not. The Colorado court distinguished the cases on the ground that Craig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorous protection from discrimination.[97]

Essentially for the same reasons, both Justice Kagan’s concurrence and the Justice Ginsburg’s dissent also reject the position of Justice Gorsuch’s concurrence that Phillips would not sell a “cake celebrating a same-sex marriage” to anyone, just as the Jack bakers would not sell the requested cakes to any customer.[98] But the cake requested of Phillips was “simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike.”[99] Although Justice Gorsuch would allow the wedding cake to become something different—i.e., a same-sex wedding cake[100]—because the vendor “invests its sale to particular customers with ‘religious significance,’” that position cannot be squared with governing law.[101] For one, public accommodations laws apply even when a vendor’s “religion disapproves of selling a product to a group of customers.”[102] And the rule flowing from Piggie Park is that “[a] vendor can choose the products he sells, but not the customers he serves—no matter the reason.”[103]

Justice Gorsuch makes the further argument that the Commission erred in presuming intent to discriminate on the basis of sexual orientation in the case of Phillips and not making the same presumption of intent to discriminate based on religion in the Jack cases, since the person most likely to ask for a cake with those particular religious messages is a person with a particular set of religious beliefs.[104] This obscures the fundamental point, however, that there is nothing discriminatory about refusing to sell a particular product that a vendor would sell to no one. There was no evidence that Jack was being singled out for his religious beliefs when he was denied cakes that disparaged other people, and that disparagement constitutes a legitimate nondiscriminatory reason.[105] To illustrate the point, “Change Craig and Mullins’ sexual orientation (or sex), and Phillips would have provided the cake.  Change Jack’s religion, and the bakers would have been no more willing to comply with his request.  . . . [T]he bakers simply refused to make cakes bearing statements demeaning to people protected by CADA.”[106] Finally, as Jim Oleske rightly observes, no presumption is warranted, because sexual orientation is “inextricably tied” to the conduct of marrying a partner of the same sex whereas opposition to gay people and marriage of same-sex couples is not inextricably tied to any particular creed, or any creed at all.[107] In sum, there is a world of difference in “the role the customer’s ‘statutorily protected trait’” in the two examples.[108]

Last, Justice Gorsuch suggests that Justice Kagan’s concurrence and Justice Ginsburg’s dissent manipulate “the level of generality” as to the messages of the Jack and Phillips cakes:  both “convey a message regarding same-sex marriage,” and both should be subject to the same rule.[109] This is certainly a high level of abstraction, particularly where the Jack cakes literally contained words and symbols expressing a point of view about gay people and their marriages, and where the majority recognized that a refusal “to design a special cake with words or images . . . might be different from a refusal to sell any cake at all.”[110] While Justice Gorsuch’s concurrence contends that any wedding cake made by Phillips conveys his approval of the customer’s wedding, much like “‘an emblem or flag,’ a cake for a same-sex wedding is a symbol . . . [and] signif[es] approval,”[111] no Supreme Court case has “suggested the provision of a baked good might be expressive conduct.”[112]  Moreover, while Phillips has expressed his “own views on the messages he believes his cakes convey,” the legal test requires conduct to be reasonably understood to an observer to be expression, and to be the expression of the vendor rather than the couple marrying.[113]

All told, it may be that Justice Kennedy chose to read the record below as permeated with hostility toward religion in order to find grounds for deciding the case that could command a majority without reaching the substantive issues raised in the appeal. Along with pressing for resolution of the substantive issues in future cases, some see new opportunities for challenging the enforcement of anti-discrimination laws. As Professors Douglas Laycock and Thomas Berg have suggested, “testers” may be closely reviewing all judicial and administrative litigation for “double standards” in how laws are applied.[114]

IV. Supreme Court Action After the Masterpiece Cakeshop Ruling

After the Supreme Court decided Masterpiece Cakeshop, it issued an order in another case in which certiorari had been sought contesting a lower court’s rejection of religious and expressive defenses to the enforcement of a sexual orientation anti-discrimination law in the context of wedding goods and services.[115] The Court granted certiorari, vacated the decision below, and remanded it to the Washington Supreme Court for reconsideration in light of Masterpiece Cakeshop.[116] Presumably, the only question for consideration on remand is whether anywhere in the record there is a demonstrated and relevant lack of neutral and respectful consideration of the floral shop owner’s religious beliefs.

The Alliance Defending Freedom (ADF)—counsel for the businesses in both Masterpiece Cakeshop and Arlene’s Flowers—is already claiming that the Washington Attorney General’s simple act of enforcing the state’s anti-discrimination law against someone asserting that they were following their religious beliefs is evidence of impermissible religious hostility.[117] That approach seems doomed where the Court just reaffirmed its Piggie Park precedent, which involved enforcement of an anti-discrimination law to an individual who claimed a religious justification.

This new attempt to craft a “religious hostility” defense, its contours and what it may mean, will likely come to the Court in due course, although one would hope that comments about a party’s defenses, including religious defenses, would not ordinarily elicit comment from enforcement and adjudicatory officials. In addition to the likelihood that the Arlene’s Flowers case will generate another petition for a writ of certiorari once the Washington Supreme Court rules upon the remand, there are numerous other cases that may provide additional opportunities for U.S. Supreme Court review.  For example, the Oregon Supreme Court declined review in another ADF case in which a baker was found to have violated state law by refusing to sell a wedding cake to a same-sex couple,[118] and the Hawaii Supreme Court declined review in a further ADF case in which the owner of a bed-and-breakfast was found to have violated a state law by refusing to rent a room to a same-sex couple.[119]

In addition, within days after the Supreme Court decided Masterpiece Cakeshop, the Arizona intermediate Court of Appeals relied on Masterpiece Cakeshop to reject religious and expressive objections to hypothetical enforcement of a sexual orientation nondiscrimination law in a wedding services context,[120] and ADF has already sought review by the state supreme court.[121] Along with the Arizona case, ADF has advanced several pre-enforcement challenges to anti-discrimination laws, such as Telescope Media Grp. v. Lindsey,[122] and 303 Creative LLC v. Elenis.[123] These are certainly inauspicious settings for identifying religious hostility, given that enforcement proceedings had not even commenced.

V. Conclusion

We are not alone in discerning a message of pluralism in the majority opinion, particularly where it concludes by noting that future cases “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.”[124]

A crucial way of managing that pluralism, as the Supreme Court ruled decades ago in Piggie Park, is to ensure an open marketplace without a vendor’s right to refuse goods and services based on religious belief. As the NAACP LDF argued in its amicus brief, “the journey out of Jim Crow” has shown that free exercise and equal protection principles “can live in harmony when neutral laws of general applicability, such as public accommodations statutes, are uniformly enforced and reasonably applied.”[125]  Specifically, while our nation “rightly cherish[es] religious liberty and go[es] to great lengths to accommodate individuals in their beliefs and practices,” those liberties “must yield to such neutral laws, especially when they are supported by the compelling interest in eliminating discrimination.”[126]  Changing that rule threatens to change much more than same-sex couples’ access to wedding cakes.[127]

Others are already advancing proposals to provide certain accommodations to vendors or service providers with a sincere religious objection so long as doing so would not impair that pluralism by exposing LGBT customers to harm. For example, Chai Feldblum argues for greater latitude for religious organizations:

When dealing with individuals, the government should respect a statement by a religious person that complying with a non-discrimination law or some other law will place a burden on that person’s religious beliefs, unless there is a good reason to believe that statement is false. If there is a way to accommodate the person and still achieve the compelling purpose of the law, the government should do that. If there is no way to accommodate the person, and still ensure that the compelling purpose of the law is achieved, then the accommodation should not be made.[128]

No doubt other proposals will surface as well.

Whatever lies on the road ahead, we hope people will heed both the Court’s admonitions that government hostility to religious belief is off limits and that gay people, and all people, are entitled to enjoy “freedom on terms equal to others.”[129]


* Mary L. Bonauto is the Civil Rights Director at GLBTQ Legal Advocates & Defenders (GLAD).  Jon W. Davidson is Chief Counsel at Freedom for All Americans Education Fund. The authors thank Gary D. Buseck for collaboration on this article, and GLAD also thanks attorneys Shannon Minter and Chris Stoll of the National Center for Lesbian Rights (NCLR) and attorneys Catherine Connors and Nolan Reichl of Pierce Atwood LLP for working together on the GLAD-NCLR amicus brief in Masterpiece Cakeshop. Brief for GLBTQ Legal Advocates & Defenders and National Center for Lesbian Rights as Amici Curiae Supporting Respondents, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018) (No. 16-111), 2017 WL 4946903. Numerous friend of the court briefs were filed in support of Respondents, which are collected by the ACLU, counsel for Charlie Craig and David Mullins. See https://www.aclu.org/cases/masterpiece-cakeshop-v-colorado-civil-rights-commission.

[1] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, SCOTUSblog (last visited Sept. 13, 2018), SCOTUSBLOG.com/case-Files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/.

[2] Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 137 S. Ct. 2290 (2017).

[3] See, e.g., Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872 (1990); Hishon v. King & Spalding, 467 U.S. 69 (1984); Newman v. Piggie Park Enters., Inc., 390 U.S. 400 (1968); see also Brief for Respondents Charlie Craig and David Mullins, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111), 2016 U.S. S. Ct. Briefs LEXIS 4396.

[4] See, e.g., Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937 (Alaska 2004); North Coast Women’s Care Med. Grp., Inc. v. San Diego Cnty. Superior Court, 189 P.3d 959 (Cal. 2008); Gifford v. McCarthy, 23 N.Y.S.3d 422 (N.Y. App. Div. 2016); State v. Arlene’s Flowers, Inc., 389 P.3d 543 (Wash. 2017).

[5] Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013), cert. denied, 134 S. Ct. 1787 (2014).

[6] See, e.g., Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014); Sorrell v. IMS Health Inc., 564 U.S. 552 (2011); Citizens United v. FEC, 558 U.S. 310 (2010).

[7] See, e.g., Rev. Irene Monroe, Will the Supreme Court Allow Businesses to Discriminate Against LGBT People?, Bilerico Report (June 28, 2017), https://www.lgbtqnation.com/2017/06/will-supreme-court-allow-businesses-discriminate-lgbt-people/. Also of concern, Petitioners’ counsel, the Alliance Defending Freedom, took a leading role in opposing marriages of same-sex couples. Some of Petitioners’ amici also called out Obergefell v. Hodges, 135 S. Ct. 2584 (2015), as wrongly decided in their view. See, e.g., Brief for Christian Bus. Owners Supporting Religious Freedom as Amicus Curiae Supporting Petitioners at 23 n.6, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111), 2017 WL 4005666.

[8] Colorado’s state constitutional provision that “Only a union of one man and one woman shall be valid or recognized as a marriage in this state,” Colo. Const. art. II, § 31, was struck down as violative of the U.S. Constitution by a state district court on July 9, 2014, and by the U.S. District Court for the District of Colorado on July 23, 2014. See Brinkman v. Long (Denver District Ct. Case No. 14-CV-30731), available at https://www.courts.state.co.us/userfiles/file/Court_Probation/17th_Judicial_District/Adams/brinkman%20sj%20order%20july%209%20final%2007%2014.pdf; Burns v. Hickerlooper, Civil Action No. 14-cv-01817-RM-KLM (D. Colo.), available at https://www.scribd.com/document/234913376/1-14-cv-01817-45. Colorado’s Attorney General dismissed appeals in these cases and ordered all counties in the state to allow same-sex couples to marry after the U.S. Supreme Court on October 6, 2014, refused to hear appeals from Fourth, Seventh, and Tenth Circuit rulings favoring marriage equality. Deb Stanley, Colorado Attorney General Orders All County Clerks to Issue Marriage Licenses to Same-sex Couples, Denver Channel (last updated Oct. 7, 2014, 6:24 PM), https://www.thedenverchannel.com/news/local-news/colorado-supreme-court-lifts-injunctions-against-3-clerks-involving-same-sex-marriage-licenses.

[9] See United States v. Windsor, 570 U.S. 744 (2013); Obergefell, 135 S. Ct. 2584.

[10] Julie Compton, Meet the Couple Behind the Masterpiece Cakeshop Supreme Court Case, NBC News (Dec. 6, 2017, 1:28 PM), https://www.nbcnews.com/feature/nbc-out/meet-couple-behind-masterpiece-cakeshop-supreme-court-case-n826976.

[11] Masterpiece Cakeshop, Ltd., 138 S. Ct. 1719, 1723 (2018).

[12] The Colorado Anti-Discrimination Act (CADA) has origins dating back in the state to 1885. The ban on sexual orientation discrimination by public accommodations, Colo. Rev. Stat. § 24-34-601(2), was added to CADA in 2008. The legislature explicitly excluded “a church, synagogue, mosque, or other place that is principally used for religious purposes” from its definition of public accommodations. See Masterpiece Cakeshop, 137 S. Ct. at 1725 (citing Colo. Rev. Stat. § 24-34-601(1) (effective Aug. 6, 2014)).

[13] The initial decision of the state administrative law judge, dated December 6, 2013, which granted summary judgment in favor of the complainants and denied Masterpiece Cakeshop’s and Jack Phillips’s cross-motion, is available at https://www.aclu.org/legal-document/craig-and-mullins-v-masterpiece-cakeshop-decision. The final agency order of the Colorado Civil Rights Commission, dated May 30, 2015, which adopted the administrative law judge’s initial decision in full, is available at https://www.aclu.org/legal-document/craig-and-mullins-v-masterpiece-cakeshop-commissions-final-order.

[14] Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 282 (Colo. App. 2015).

[15] Masterpiece Cakeshop, 138 S. Ct. at 1745 (Thomas, J., concurring).

[16] Craig, 370 P.3d at 272.

[17] Id. at 280.

[18] Christian Legal Soc'y Chapter of Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 689 (2010) (stating “[o]ur decisions have declined to distinguish between status and conduct” in the context of sexual orientation); see also Obergefell, 135 S. Ct. at 2604 (noting that the "denial to same-sex couples of the right to marry" is a "disability on gays and lesbians" which "serves to disrespect and subordinate them"); Lawrence v. Texas, 539 U.S. 558, 575 (2003) (targeting “homosexual conduct” in criminal law is “an invitation to subject homosexual persons to discrimination”) (emphasis added); id. at 583 (O’Connor, J., concurring) (noting where the law applies to conduct “closely correlated with being homosexual” then the law is about “more than conduct” and is “instead directed toward gay persons as a class”).

[19] Craig, 370 P.3d at 281.

[20] Id. at 286-87.

[21] Id. at 288.

[22] Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872 (1990).

[23] Craig, 370 P.3d at 290-94.

[24] Masterpiece Cakeshop, Inc. v. Colo. Civil Rights Comm’n, 2016 Colo. LEXIS 429, 2016 WL 1645027 (Apr. 25, 2016).

[25]  Masterpiece Cakeshop, 138 S. Ct. 1719 (2018).

[26] Id. at 1729.

[27] Id. at 1731.

[28] Id. at 1723.

[29] Id. at 1727.

[30] Id. at 1728. Some may say that all these statements rejecting broad religious exemptions and reaffirming the Constitution’s protection of the equal dignity of lesbian, gay, and bisexual people are dicta (statements not necessary to the decision that do not create binding precedent), but lower courts rarely view considered statements of the Supreme Court that way. See McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991) (concluding that "federal appellate courts are bound by the Supreme Court's considered dicta almost as firmly as by the Court's outright holdings, particularly when . . . a dictum is of recent vintage and not enfeebled by any subsequent statement" and collecting cases to like effect from other circuits); see also Galli v. N.J. Meadowlands Comm’n, 490 F.3d 265, 274 (3d Cir. 2007) (“Because the ‘Supreme Court uses dicta to help control and influence the many issues it cannot decide because of its limited docket,’ failing to follow those statements could ‘frustrate the evenhanded administration of justice by giving litigants an outcome other than the one the Supreme Court would be likely to reach were the case heard there.’”) (citations omitted); Laub v. U.S. Dep't of Interior, 342 F.3d 1080, 1090 n.8 (9th Cir. 2003) (“Supreme Court dicta is not to be lightly disregarded.”).

[31] Masterpiece Cakeshop, 138 S. Ct. at 1727.

[32] Id. at 1728.

[33] Id. at 1724.

[34] Id. at 1723-1724.

[35] Id. at 1727 (citing Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n.5 (1968)).

[36] Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557 (1995).

[37] Masterpiece Cakeshop, 138 S. Ct. at 1727 (citing Hurley, 515 U.S. at 572 (1995)).

[38] Id. at 1728.

[39] Id. at 1723-24; see also id. at 1728 (“Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, . . . the State would have a strong case under this Court’s precedents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations laws.”).

[40] See id. at 1732 (Kagan, J., concurring); id. at 1734 (Gorsuch, J., concurring); id. at 1740 (Thomas, J., concurring); id. at 1748 (Ginsburg, J., dissenting).

[41] Romer v. Evans, 517 U.S. 620 (1996).

[42] Lawrence v. Texas, 539 U.S. 558 (2003).

[43] United States v. Windsor, 570 U.S. 744 (2013).

[44] Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

[45] Masterpiece Cakeshop, 138 S. Ct. at 1727.

[46] Id.

[47] Some amici briefs supporting the Petitioners argued there was no harm when an alternate service provider is available, e.g. Brief for The Becket Fund for Religious Liberty as Amicus Curiae Supporting Petitioners at 34-35, Masterpiece Cakeshop,  138 S. Ct. 1719 (2018) (No. 16-111), 2017 WL 4004526; Brief for The Cato Institute and Individual Rights Found. as Amici Curiae Supporting Petitioners at 17, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111), 2017 WL 4004528. Others argued that the dignitary harm experienced by Craig and Mullins is insufficient harm for a discrimination claim, particularly where the service provider or vendor also experiences dignitary harm. Brief for the Petitioners at 50-52, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111), 2017 WL 3913762; Brief for The Christian Legal Soc’y et al. as Amici Curiae Supporting Petitioners at 5, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111), 2017 WL 4005662.

[48] Masterpiece Cakeshop, 138 S. Ct. at 1727.

[49] Id.

[50] See also id. at 1728-29 (“[A]ny decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”).

[51] This argument has been rejected by the Court previously. See discussion supra note 18. But see Brief for Petitioners, at 52-53, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111), 2017 WL 3913762 (arguing that the couple had no compelling dignitary interest, because Phillips would sell them other products, but not “a custom wedding cake that would celebrate their marriage”); Brief of The Becket Fund for Religious Liberty, as Amici Curiae Supporting Petitioners at 25, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111), 2017 WL 4004526 (arguing that the baker objected to baking this wedding cake because of opposition to this marriage of a same-sex couple (conduct) and not opposition to the respondents’ sexual orientation (status)); Brief of Council of Christian Colleges and Universities, et al. as Amici Supporting Neither Party at 34, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111), 2017 WL 4023116 (arguing that the baker did not discriminate based on status, but declined to “participate (directly or indirectly) in their same-sex wedding because . . . for religious reasons he viewed that ceremony as reflecting a moral choice.”).

[52] See, e.g., Brief for Petitioners, at 34, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111), 2017 WL 3913762 (arguing that the state’s asserted compelling interest in eradicating discrimination was too broad and that the justification must be assessed with reference to facts of case); Brief for Law and Economics Scholars as Amicus Curiae Supporting Petitioners at 11-16, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111), 2017 WL 4118065  (arguing that there were no monopoly concerns and that same-sex couples may seek alternate vendors).

[53] See, e.g., Brief for Liberty Counsel as Amicus Curiae Supporting Petitioners at 17, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111), 2017 WL 4005663 (arguing that laws should be limited to addressing racial discrimination only).

[54] Masterpiece Cakeshop, 138 S. Ct. at 1723.

[55] Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 878-79 (1990).

[56] Brief for Petitioners at 48 n.8, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111), 2017 WL 3913762.

[57] See, e.g., Brief for The Christian Legal Soc’y et al. as Amici Curiae Supporting Petitioners at 6, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018) (No. 16-111), 2017 WL 4005662.

[58] Masterpiece Cakeshop, 138 S. Ct. at 1734 (Gorsuch, J., dissenting).

[59] Id. at 1748, n.1 (Ginsburg, J., dissenting).

[60] Id. at 1723.

[61] Id.

[62] See, e.g. Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015); Lawrence v. Texas, 539 U.S. 558, 578-79 (2003).

[63] Masterpiece Cakeshop, 138 S. Ct. at 1723.

[64] Id. at 1727.

[65] Id. (quoting Obergefell, 135 S. Ct. at 2607).

[66] Id. at 1732.

[67] Id. at 1740.

[68] Id. at 1742-43.

[69] Id. at 1746.

[70] Id. The U.S. Department of Justice made comparable arguments about speech, but contended that application of public accommodations law to protected expression “may” not violate the Constitution in the case of laws targeting race-based discrimination. Brief for United States as Amicus Curiae Supporting Petitioner at 32, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111), 2017 WL 4004530.

[71] Masterpiece Cakeshop, 138 S. Ct. at 1738.

[72] Id. at 1737-39.

[73] Id. at 1729.

[74] Id. at 1728.

[75] Id. at 1729.

[76] Id.

[77] Id.

[78] Id.

[79] Id.

[80] Id. at 1729.

[81] Id. at 1732 (Kagan, J., concurring). Others have also observed the tension between Justice Kennedy’s reliance on these statements of two of seven commissioners given his joinder in the Supreme Court’s the majority opinion in Trump v. Hawaii, 138 S. Ct. 2392 (2018), less than three weeks later. As Justice Sotomayor objected in her dissent in that case,

Unlike in Masterpiece, where the majority considered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, the majority here completely sets aside the President’s charged statements about Muslims as irrelevant.

Id. at 2447.

[82] Masterpiece Cakeshop, 138 S. Ct. at 1751 (Ginsburg, J., dissenting).

[83] Id. at 1749 (Ginsburg, J., dissenting).

[84] Id. at 1730-31.

[85] Id. at 1730.

[86] Id. at 1730-31.

[87] Id.

[88] Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540 (1993).

[89] Masterpiece Cakeshop, 138 S. Ct. at 1731.

[90] Id. at 1730; see also id. at 1728 (noting “[t]here were, to be sure, responses to these arguments that the State could make” in contending for a different rule in the two sets of cases).

[91] Id. at 1735-36 (Gorsuch, J., concurring).

[92] Id. at 1729-31.

[93] Id. at 1733 (Kagan, J., concurring).

[94] Id.

[95] Id. at 1750-51.

[96] Id. at 1749.

[97] Id. at 1751 (Ginsburg, J., dissenting).

[98] Id. at 1733, n.* (Kagan, J. concurring).

[99] Id.

[100] Id. at 1738 (Gorsuch, J., concurring).

[101] Id. at 1733, n.* (Kagan, J., concurring) (internal citation omitted).

[102] Id. (citing Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 n.5 (1968) (per curiam)).

[103] Masterpiece Cakeshop, 138 S. Ct. at 1733, n.* (Kagan, J. concurring). Justice Gorsuch’s view that the cake is different if it is for a same-sex couple’s wedding than if it is for a different-sex couple’s wedding is at odds with the rulings in Windsor and Obergefell that rejected the notion that when same-sex couples marry they are doing something fundamentally different than when different-sex couples marry, i.e., they are entering a “gay marriage” rather than a “marriage.” Obergefell v. Hodges, 135 S. Ct. 2584, 2599 (2015) (ruling that “same-sex couples may exercise the right to marry” and the reasons marriage is fundamental “apply with equal force to same sex couples”); United States v. Windsor, 570 U.S. 744, 769 (2013) (holding that married same-sex couples have a lawful status “worthy of dignity and equal with all other marriages”); Lawrence v. Texas, 539 U.S. 558, 567 (2003) (holding that same-sex couples have the same right as opposite sex couples of to enjoy intimate association).

[104] Masterpiece Cakeshop, 138 S. Ct. at 1736-37.

[105] See id. at 1733-34, (Kagan, J., concurring); id. at 1751 (Ginsburg, J., dissenting).

[106] Id. at 1750, n.3 (Ginsburg, J., dissenting).

[107] Jim Oleske, Justice Gorsuch, Kippahs, and False Analogies in Masterpiece Cakeshop, TAKE CARE Blog (June 19, 2018), https://takecareblog.com/blog/justice-gorsuch-kippahs-and-false-analogies-in-masterpiece-cakeshop (citing Christian Legal Soc’y Chapter of Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661 (2010)).

[108] Masterpiece Cakeshop, 138 S. Ct. at 1750 n.3 (Ginsburg, J., dissenting) (internal citation omitted). In addition, Justice Gorsuch’s concurrence claims that both the Jack baker and Phillips agreed they would sell other products to people of faith (Jack) and gay people (Phillips), thus negating any intent to discriminate. The majority opinion lacked the assurance that this was so. Id. at 1723 (“One of the difficulties of this case is that the parties disagree as to the extent of the baker’s refusal to provide service.”); id. at 1726 (noting Phillips’s refusal to sell cupcakes to a lesbian couple for their commitment celebration and the affidavits submitted asserting the cakeshop’s policy of “not selling baked goods to same-sex couples for this type of event.”).

[109] Id. at 1739.

[110] Id. at 1723.

[111] Id. at 1738.

[112] Id. at 1748, n.1 (Ginsburg, J., dissenting). While this discussion in Justice Ginsburg’s dissent is directed at Justice Thomas’s concurrence on free speech grounds, the same points can be made as to the speech-infused elements of the Gorsuch concurrence. Id. at 1748, n.5.

[113] Id. (citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294 (1984)). Two blog posts concisely explain the question of whether a vendor speaks at all. See Tobias Wolff, Symposium: Anti-Discrimination Laws Do Not Compel Commercial-Merchant Speech, SCOTUSblog (Sep. 14, 2017, 10:25 AM), http://www.scotusblog.com/2017/09/Symposium/anti-discrimination-laws-do-not-compel-commercial-merchant-speech/; Robert Post, An Analysis of DOJ’s Brief in Masterpiece Cakeshop,  TAKE CARE Blog (Oct. 18, 2017), https://takecareblog.com/blog/an-analysis-of-doj-s-brief-in-masterpiece-cakeshop.

[114] Douglas Laycock and Thomas Berg, Symposium: Masterpiece Cakeshop – Not as Narrow as May First Appear, SCOTUSblog (June 5, 2018, 3:48 PM), hppt://www.scotusblog.com/2018/06/symposium-masterpiece-cakeshop-not-as-narrow-as-may-first-appear/.

[115] Arlene’s Flowers v. Washington, 86 U.S.L.W. 3640 (June 25, 2018).

[116] Id.

[117] Supplemental Brief of Petitioner, Arlene’s Flowers, 138 S. Ct. 2671 (mem.) (No. 17-108), 2018 WL 3019588, available at https://www.supremecourt.gov/DocketPDF/17/17-108/49474/20180606162140535_17-108%20Supplemental%20Brief%20of%20Petitioners.pdf.

[118] Klein v. Or. Bureau of Labor & Indus., 410 P.3d 1051 (Or. Ct. App. 2017); see Aimee Green, Oregon Supreme Court Won't Hear Sweet Cakes by Melissa's Appeal, Oregonian/Oregon Live (June 22, 2018), https://www.oregonlive.com/pacific-northwest-news/index.ssf/2018/06/oregon_supreme_court_wont_hear.html.

[119] Cervelli v. Aloha Bed & Breakfast, SCWC-13-0000806, 2018 WL 3358586,  (Haw. July 10, 2018). ADF is advancing numerous additional similar cases forward as well. See Brennan Suen, Masterpiece Cakeshop Was Just the Beginning, Media Matters (June 5, 2018, 1:32PM),  https://www.mediamatters.org/blog/2018/06/05/Masterpiece-Cakeshop-was-just-the-beginning-ADF-is-pushing-several-other-license-to-discri/220381.

[120] Brush & Nib Studio v. Phoenix, 418 P.3d 426 (Ariz. Ct. App. 2018).

[121] Arizona Supreme Court Gets Appeal on Discrimination Issue, AP (July 10, 2018), https://www.apnews.com/71683eb6dbd24bde9c029b75daa8ca64.

[122] Telescope Media Grp. v. Linsey, 271 F. Supp. 3d 1090 (D. Minn. 2017), appeal pending, No. 17-3352 (8th Cir.).

[123] 303 Creative LLC v. Elenis, 2017 U.S. Dist. LEXIS 203423 (D. Colo. Sept. 1, 2017), appeal dismissed, 2018 U.S. App. LEXIS 22516 (10th Cir. Aug. 14, 2018).

[124] Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1732 (2018).

[125] Brief for NAACP Legal Defense Fund as Amici Curiae Supporting  Respondents at 20, Masterpiece Cakeshop,, 138 S.Ct. 1719 (No. 16-111), 2017 WL 5127302).

[126] Id.

[127] Paul M. Smith, The Real Cost of Masterpiece; It’s Personal, Balkinization, (Apr. 7, 2018), https://balkin.blogspot.com/2018/04/the-real-cost-of-masterpiece-its.html.

[128] See, e.g., Chai Feldblum, What I Really Believe About Religious Liberty and LGBT Rights, Medium (Aug. 1, 2018), https://medium.com/@chaifeldblum/what-i-really-believe-about-religious-liberty-and-lgbt-rights-2cc64ade95a2. 

[129] Masterpiece Cakeshop, 138 S. Ct. at 1727.