Facts and Previous Proceedings

Jack Phillips was approached in 2012 by a same-sex couple, Charlie Craig and Dave Mullins, who were planning to marry in another State (at the time, same sex marriage was not legal in Colorado). He declined to make the cake, on the basis that he ran his business in accordance with his Christian principles, and he believed that same-sex marriage was contrary to God’s will for humanity. He had also declined previous invitations to make cakes celebrating or involving other things he thought were wrong:

Phillips also refuses to bake cakes containing alcohol, cakes with racist or homophobic messages, cakes criticizing God, and cakes celebrating Halloween—even though Halloween is one of the most lucrative seasons for bakeries (per Thomas J at p 10.)

The couple made a complaint under the Colorado Anti-Discrimination Act (“CADA”) to the Colorado Civil Rights Division, which then referred it to the Colorado Civil Rights Commission (“CCRC”). After a hearing by an Administrative Law Judge the Commission made a finding that there had been unlawful “sexual orientation” discrimination under CADA, Colo. Rev. Stat. §24–34–601(2)(a) (2017). Their finding was followed by an order that Jack Phillips provide cakes to same sex couples in future, undergo “comprehensive staff training on the Public Accommodations section” of CADA “and [make] changes to any and all company policies to comply with . . . this Order”, as well as providing regular reports to the Commission of reasons for declining cake orders. An appeal to the Colorado Court of Appeals was rejected, and the Colorado Supreme Court declined to hear the case. It then went to the US Supreme Court,

Positive Features of the Majority Decision

The majority decision of the Court was a 7-2 ruling in favour of Jack Phillips. In the US Supreme Court usually one judge authors what is spoken of as “the opinion of the Court”, and in this case it was Kennedy J (with whose opinion Roberts, C. J., and Breyer, Alito, Kagan, and Gorsuch, JJ., joined). All those Justices, except Roberts CJ, also wrote or joined in separate concurrences, explaining why they had joined the main decision, and then offering their additional remarks on other matters (or explaining why they disagreed with some of the other members of the Court). Thomas J concurred in the outcome but offered his own reasons for doing so. Ginsburg and Sotomayor JJ dissented. The main reason offered for his ruling by Kennedy J was that, whatever the merits of the dispute, Phillips had been treated unfairly by the CCRC on account of his religious beliefs. This amounted to an unlawful impairment of his First Amendment “free exercise” rights. Elements of the Commission’s behaviour which led to this outcome included:

• the fact that the Commission “endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain” (per Kennedy J at 12);
• “inappropriate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced” (ibid, at 13);
• the fact the Commission suggested that religion had been used to support the holocaust, and the comment that it was “one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” (ibid, at 13)

These comments led Kennedy J to say that there was clear animus against Phillips’ beliefs in the way that he was treated by the Commission:.

the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. (ibid at 14).

The “last straw” for Justice Kennedy was the fact that the Commission, around the same time as it was punishing Jack Phillips, had ruled on three alleged examples of discrimination involving cake makers who declined to provide cakes with an “anti-same-sex marriage” message, and found them not guilty of discrimination. In those cases the Commission said that the refusal was based on the message sent by the cakes, not the religion of the customer. Yet Phillips argued that this was precisely his situation: he had not declined to make the cake because of the identity of the customer, but rather because of the message that the cake conveyed, of support for a same sex relationship. The Commission’s animosity and inconsistency led Kennedy J to conclude that Phillips had been treated differentially on the grounds of his religion. In an important passage he commented:

A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.See Matal v. Tam, 582 U. S. ___, ___–___ (2017) (opinion of ALITO, J.) (slip op., at 22–23). The 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. (ibid, at 16)

Kennedy J concluded his comments with a paragraph which will no doubt be much quoted by those who are not keen on the outcome of this case:

The 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.

While the outcome of the case is a good one, it has to be said that the grounds for the decision as articulated in the opinion of the Court are very narrow. This is not a reference to the size of the majority: in the current era, a 7:2 majority is a substantial win. But the agreed basis accepted by the 6 Justices who joined in the majority opinion relies very heavily on an “accidental” feature of this case, that the Colorado Commission was open in expressing its animosity to Phillips’ views. Indeed, something perhaps not yet widely noted is that the basis for the decision is not in any sense that Jack Phillips was excused from being held accountable for his decision to politely decline to supply a wedding cake- he only won because of the bad way he was treated after the complaint was initiated. This of course quite literally leaves us with no guidance from the majority as to whether it is excusable for someone to decline to provide artistic services for a same sex wedding on the basis of their religious beliefs. But perhaps we can at least be grateful that Kennedy J does recognise that there is an issue here to be resolved! He says this near the beginning of the opinion of the Court (at 1-2):

The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities 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. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the FourteenthAmendment. 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. (emphasis added)

This is a helpful summary of the main issues. It demonstrates that a sensible court can recognise that there are serious issues to balance, and that there are plausible arguments on both sides. Other members of the court, in my view, offer better and clearer reasons for coming to the same outcome.

Comments of the Minority Judges

Gorsuch J, for example, supported the view that a wedding cake conveys a message of support for a wedding, and hence that free speech and free exercise issues were involved:

[N]o bureaucratic judgment condemning a sincerely held religious belief as “irrational” or “offensive” will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise. Just as it is the “proudest boast of our free speech jurisprudence” that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive. See Matal v. Tam, 582 U. S. ___, ___ (2017) (plurality opinion) (slip op., at 25) (citing United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting)). Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom. (per Gorsuch J, at 7)

Thomas J (with whom Gorsuch J agreed) based his concurring opinion strongly on the need to protect free speech. Protection of free speech includes protection of “expressive conduct” (at 3) which conveys a message.

Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palate with a paintbrush and baker’s whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding…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.” (per Thomas J, at 5-6)

The message that this marriage should be celebrated is just the message Phillips, on sincere religious grounds, did not wish to convey.

Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],” Hurley, 515 U. S., at 574, or to “affir[m] . . . a belief with which [he] disagrees,” id., at 573 (ibid, at 8)

In a powerful comment from an African-American judge, Justice Thomas notes that it is surely not too much to protect Phillips’ free speech on this point, considering what sort of speech the court has protected in the past:

Moreover, it is also hard to see how Phillips’ statement is worse than the racist, demeaning, and even threatening speech toward blacks that this Court has tolerated in previous decisions. Concerns about “dignity” and “stigma” did not carry the day when this Court affirmed the right of white supremacists to burn a 25-foot cross, Virginia v. Black, 538 U. S. 343 (2003); conduct a rally on Martin Luther King Jr.’s birthday, Forsyth County v. Nationalist Movement, 505 U. S. 123 (1992); or circulate a film featuring hooded Klan members who were brandishing weapons and threatening to “‘Bury the niggers,’” Brandenburg v. Ohio, 395 U. S. 444, 446, n. 1 (1969) (per curiam). (ibid, at 13)

Ambiguities and Uncertainties

There are, though, still a number of uncertainties after this decision. Kennedy J scrupulously declines to decide whether a citizen’s First Amendment free speech or religious free exercise rights, might justify them in some cases in not devoting their artistic skills to the celebration of a same sex wedding.

The 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. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. (per Kennedy J, at 2-3)

Such a decision may need to await a case where the issue clearly presents itself, free from any discriminatory approach by the lower tribunals. One such case may be that of the Washington florist, Baronelle Stutzmann, whose case I have discussed previously here. She has applied for leave to appeal to the Supreme Court (see the relevant documents here), and a decision on whether to “grant certiorari” (allow the appeal to proceed) is expected in the next month or so. On the other side of the Atlantic, as noted previously, the Ashers Bakery case raises some of these issues. In Australia we have not so far seen any “wedding cake” cases, though such could arise in theory, and could have come up even before same sex marriage was introduced at the end of 2017. Here we do not enjoy a generally applicable religious free exercise right as the US does under its First Amendment (in Australia, unlike the US, our s 116 does not apply to the States, but only to the Commonwealth Parliament.) But for the moment we may hope that if a Christian small business owner wants to be faithful to their religion, and to politely decline to join in celebrating a same-sex wedding by devoting their artistic skills to this end, their religious freedom would be respected. Whether more formal legal protections should be provided is an ongoing debate, to be illuminated no doubt when the Ruddock Panel report, and the Government response to it, becomes available.   This article first appeared on Neil Foster's website, Law and Religion, and is reproduced here with permission. Photo credit: thenation.com