Supreme Court Rules Show Owner May Refuse to Sell Wedding Cake to Same-Sex Couple

Supreme Court Rules Shop Owner May Refuse to Sell Wedding Cake to Same-Sex Couple

            In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___, 138 S. Ct. 1719 (2018), the United States Supreme Court held that a shop owner could not be compelled to sell a wedding cake to a same-sex couple on the grounds that it would violate his right to the free exercise of religion under the Free Exercise Clause of the First Amendment.  At first glance, it might appear in our ever increasing politically charged and divided society that this decision is an example of a conservative court imposing its conservative views, it should be noted that six justices joined in the opinion, a seventh concurred with the judgment and in part with the opinion, and only two dissented.

In 2012, Charlie Craig (“Craig”) and Dave Mullins (“Mullins”), a same-sex couple, visited a Colorado bakery named Masterpiece Cakeshop, Ltd. (the “Cakeshop”), seeking a wedding cake for their wedding reception.  Cakeshop’s owner, Jack Phillips (“Phillips”), is a devout Christian, whose “main goal in life is to be obedient to Jesus Christ and Christ’s teachings in all aspects of his life.”  This includes “honor[ing] G-d through his work at [the] Cakeshop.”

When Craig and Mullins told Phillips they wanted a cake for “our wedding,” Phillips told them he would not make them a wedding cake because of his religious opposition to same-sex marriage.  Phillips, however, offered to make them a birthday cake, a cake for another occasion, or other baked goods.  Phillips explained to Craig’s mother the following day, who sought an explanation from Phillips for his refusal to serve the couple, that “to create a wedding cake for an event that celebrates something that directly goes against the teachings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.”

The couple filed a charge of discrimination with the Colorado Civil Rights Commission (“CCRC”), alleging discrimination on the basis of sexual orientation under the Colorado Anti-Discrimination Act (“the Act”).  It is unlawful under the Act “to refuse, withhold from, or deny to any individual or group, because of . . . sexual orientation . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”  A “public accommodation” is defined to include a “place of business engaged in any sales to the public and any place offering services . . . to the public,” but it excludes “a church, synagogue, mosque,” or other places of worship.

During its investigation, the CCRC found that Phillips had turned away potential customers on multiple occasions on the basis of their sexual orientation, stating he could not create a cake for a same-sex wedding ceremony or reception based on his religious beliefs.  The investigation unit determined that there was probable cause to conclude that Cakeshop violated the Act and referred the matter to an administrative law judge for a formal hearing.  Phillips, on behalf of Cakeshop, raised two constitutional arguments before the ALJ.  First, compelling him to create a cake for a same-sex wedding would violate his First Amendment right of free speech because it would compel him to exercise his artistic talents to express a message with which he disagreed.  The ALJ rejected this argument, finding that creating a wedding cake did not constitute a form of protected speech under the First Amendment and creating such a cake would not compel Phillips to adhere to “an ideological point of view.”  Second, Phillips argued that compelling him to make a wedding cake for a same-sex couple would violate his right to the free exercise of religion under the First Amendment.  The ALJ rejected this argument as well, finding that the Act was a “valid and neutral law of general applicability” and requiring Cakeshop to comply would not violate Phillips’ rights under the Free Exercise Clause of the First Amendment.  The full Commission of the CCRC affirmed the ALJ’s decision, ordering Phillips, among other things, to cease and desist from discriminating against same-sex couples.  Phillips (and Cakeshop) appealed to the Colorado Court of Appeals, which affirmed the CCRC’s decision.  The Colorado Supreme Court declined to hear the case and Cakeshop sought review by the United States Supreme Court, which granted certiorari.

The Court noted that the issues before it did not concern whether a shop could refuse all services to same-sex couples, as Phillips conceded that the denial of all goods or services would go beyond any protected rights of a baker selling goods and services to the general public.  Instead, Phillips presented a narrower question to the Court – whether he could be compelled “to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation.”  According to Phillips, being compelled to act in such a manner violated his rights to free speech and the free exercise of religion.

The Court found Phillips’ position reasonable, at least in part, based on the fact that Colorado did not recognize same-sex marriages at the time the events at issue transpired.  The Court also found that the CCRC did not show neutral and respectful consideration of Phillips’ religious views and, in fact, expressed impermissible hostility toward his religious beliefs.  The Court noted that the Commission at several points during its formal hearing commented that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, “implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.”  One example of such a comment came from a Commissioner who stated that Phillips could believe “what he wants to believe,” but he cannot act on his religious beliefs “if he decides to do business in the state.”  Another example included a comment describing Phillips’ faith as “one of the most despicable pieces of rhetoric that people can use.”  The Court cited a number of other examples, which need not be repeated here.

The Court further noted that the CCRC had previously considered at least three other occasions where bakers had refused to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text, and, in each instance, the CCRC found that the baker acted lawfully in refusing service.  The CCRC did not find violations in those prior cases because the requested cakes included “wording and images [the baker] deemed derogatory[;]” featured “language and images [the baker] deemed hateful[;]” and displayed a message the baker “deemed [ ] discriminatory.”  This was significant in part because, in those other cases, the CCRC attributed the messages to the baker, but, in Cakeshop’s case, the CCRC attributed the message as coming from the baker.  In addition, in those prior cases, the CCRC did not find a violation of the Act in part because the baker was willing to sell other products to the customers, but the CCRC found that fact irrelevant in Cakeshop’s case.  The Court found the CCRC’s inconsistent approach on these issues “could reasonably be interpreted as being inconsistent as to the question of whether speech is involved.”  The Court concluded that a footnote in the Colorado Court of Appeals’ decision did not answer Phillips’ concerns about the State of Colorado taking a position that disfavored his religious views.

The Court explained that the Free Exercise Clause of the First Amendment “bars even ‘subtle departures from neutrality’ on matters of religion.”  The CCRC, however, did not proceed in a neutral manner toward Phillips’ religious views for the reasons discussed above.  According to the Court, the CCRC’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.”  As a result, the Court ruled that the CCRC’s order must be set aside and the decision of the Colorado Court of Appeals must be reversed.

The Supreme Court’s decision in Masterpiece Cakeshop is important, but, at the same time, it does not provide much practical guidance for businesses going forward.  On the one hand, the Court’s decision in Masterpiece Cakeshop indicates businesses may decline certain services to same-sex couples based on sincere religious beliefs.  On the other hand, the Court did not provide much, if any, guidance on what constitutes protected speech under the First Amendment and it did not clearly determine whether the artistic design of a cake constitutes speech that is protected by the First Amendment, an issue that was presented for consideration.  In addition, while the Court focused its analysis on the apparent bias the CCRC exhibited against Phillips’ religious views when it issued its decision, the Court did not provide much, if any, guidance on the extent to which a shop owner’s religious beliefs could form a legitimate basis to deny certain services to certain customers (in particular, same-sex couples), although the ruling does indicate such refusal may be permitted in some instances.  Also, it is unclear whether the Court would have reached the same conclusion if Colorado had recognized same-sex marriages at the time the events transpired.  Thus, while Masterpiece Cakeshop may receive a lot of headlines about the Court ruling in favor of a shop owner declining service to a same-sex couple on the basis of the shop owner’s religious beliefs, the Court’s analysis leaves a lot of questions unanswered about the extent to which a shop owner may make such a business decision.  As the Court noted, “[t]he outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes 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.”