The U.S. Supreme Court on Monday ruled 7-2 in favor of a Christian baker who refused to make a cake to celebrate a same-sex wedding due to his faith commitments.
In the case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Christian baker Jack Phillips was accused of violating an anti-discrimination ordinance for refusing to make a custom cake for a same-sex wedding celebration for Dave Mullins and Charlie Craig. The Supreme Court ruled that the Colorado Civil Rights Commission violated Phillips' right to free exercise of religion because the hostility it showed to his faith demonstrated that it had not applied the law neutrally in regard to religion.
Here are some of the most interesting quotes from that opinion, the concurring opinions, and the dissent. For clarity, some of the citations have been removed.
Specific to This Case
Justice Anthony Kennedy authored the opinion. He ruled in favor of Phillips based upon the Free Exercise Clause of the First Amendment, but suggested the ruling is specific to this case and won't necessarily apply to all bakers who refuse to make a cake for a same-sex wedding.
" ... whatever the outcome of some future controversy involving facts similar to these, the Commission's actions here violated the Free Exercise Clause ...."
The efforts of Christian activist Bill Jack played a significant role in the court's ruling. In an effort to bring attention to Phillips' case, and assess whether Colorado held a double standard, Jack asked bakeries to make a cake with Bible verses related to homosexuality. A Colorado regulatory agency decided that a bakery does have the right to refuse Jack's request. This was mentioned in the opinion as well as concurring opinions and the dissent.
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"At the time, state law also afforded storekeepers some latitude to decline to create specific messages the storekeeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers' creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages."
And in another place he wrote:
"Another indication of hostility is the difference in treatment between Phillips' case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission."
Kennedy then cited Jack's three cases, adding:
"The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission's treatment of Phillips' objection."
A concurring opinion written by Justice Elana Kagan and joined by Justice Stephen Breyer said that Colorado could have treated Black's cases differently than Phillips' case if it had not demonstrated hostility toward Phillips' faith.
"The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious belief."
A dissenting opinion written by Justice Ruth Bader Ginsburg and joined by Justice Sonia Sotomayor argued that the Jack cases and Phillips' case aren't comparable because Phillips was asked to make a cake just like any other.
"The bakers would have refused to make a cake with Jack's requested message for any customer, regardless of his or her religion. And the bakers visited by Jack would have sold him any baked goods they would have sold anyone else. The bakeries' refusal to make Jack cakes of a kind they would not make for any customer scarcely resembles Phillips' refusal to serve Craig and Mullins: Phillips would not sell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied. ... Jack, on the other hand, suffered no service refusal on the basis of his religion or any other protected characteristic. He was treated as any other customer would have been treated—no better, no worse."
Another concurring opinion, written by Justice Neil Gorsuch and joined by Justice Samuel Alito, said that Jack's cases showed that Colorado failed to implement its discrimination law neutrally.
"Maybe most notably, the Commission allowed three other bakers to refuse a customer's request that would have required them to violate their secular commitments. Yet it denied the same accommodation to Mr. Phillips when he refused a customer's request that would have required him to violate his religious beliefs."
Gorsuch used the example of Jack's cases versus Phillips' case to argue that Ginsburg and Sotomayor were wrong in their dissent, and Kagan and Breyer were wrong to say, in their concurrence, Colorado could've infringed upon Phillips' religious freedom if it wasn't hostile to Phillips' religious belief.
"The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending only to honor a personal conviction. ... In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers."
Be Nice When Infringing Upon Religious Freedom
In the majority opinion, Kennedy suggests that Colorado could have infringed upon Phillips' religious freedom if it had gone about it in a different way.
"There were, to be sure, responses to these arguments that the State could make when it contended for a different result in seeking the enforcement of its generally applicable state regulations of businesses that serve the public. And any 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. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case."
The Colorado Civil Rights Commission showed hostility toward Phillips' Christian views, so its decision was not neutral with regard to religion, Kennedy added.
"To describe a man's faith as 'one of the most despicable pieces of rhetoric that people can use' is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips' invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado's anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation."
Kennedy concluded by saying that government hostility to a religion violates the First Amendment.
"For the reasons just described, the Commission's treatment of Phillips' case violated the State's duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint."
Freedom of Speech
Kennedy called Phillips' Freedom of Speech claims "difficult."
"The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning."
In a concurring opinion, Justice Clarence Thomas argued Phillips should've also won his case on free speech grounds. To support his argument that a wedding cake is expressive speech, he cited a book on the history of dessert — Sweet Invention: A History of Dessert by Michael Krondl — and an article in the anthropology journal Man — "Interpretation and Custom: The Case of the Wedding Cake" by Simon Charsley.
"Phillips also sees the inherent symbolism in wedding cakes. To him, a wedding cake inherently communicates that 'a wedding has occurred, a marriage has begun, and the couple should be celebrated.'
"Wedding cakes do, in fact, communicate this message. A tradition from Victorian England that made its way to America after the Civil War, '[w]edding cakes are so packed with symbolism that it is hard to know where to begin.' M. Krondl, Sweet Invention: A History of Dessert 321 (2011) .... If an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding. The cake is 'so standardised and inevitable a part of getting married that few ever think to question it.' Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 95 (1987). Almost no wedding, no matter how spartan, is missing the cake. 'A whole series of events expected in the context of a wedding would be impossible without it: an essential photograph, the cutting, the toast, and the distribution of both cake and favours at the wedding and afterwards.' Ibid. Although the cake is eventually eaten, that is not its primary purpose. ... The cake's purpose is to mark the beginning of a new marriage and to celebrate the couple.
"Accordingly, Phillips' creation of custom wedding cakes is expressive."
I Told You So
Thomas also reminded the court that what he warned would happen in his dissent to the case legalizing gay marriage, Obergefell v. Hodges, has in fact happened.
"In Obergefell, I warned that the Court's decision would 'inevitabl[y] . . . come into conflict' with religious liberty, 'as individuals . . . are confronted with demands to participate in and endorse civil marriages between same-sex couples.' This case proves that the conflict has already emerged. Because the Court's decision vindicates Phillips' right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to 'stamp out every vestige of dissent' and 'vilify Americans who are unwilling to assent to the new orthodoxy.' If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals' must be rejected."