Masterpiece Cakeshop, Ltd. is a Colorado bakery owned and operated by Jack Phillips, an expert baker and devout Christian. On 4 June, in Masterpiece Cakeshop Ltd et al v Colorado Civil Rights Commission et al 584 U. S. ____ (2018) 3, the US Supreme Court ruled by 7-2 (Justices Ginsburg and Sotomayor dissenting) that the Colorado Civil Rights Commission’s actions in assessing Mr Phillips’s reasons for declining to make a cake for a same sex couple’s wedding celebration violated the Free Exercise Clause in the First Amendment to the US Constitution.
In an opinion by Justice Kennedy, the Court reversed the decision of the Court of Appeals of Colorado. Justice Kagan filed a concurring opinion in which Justice Breyer joined. Justice Gorsuch filed a concurring opinion in which Justice Alito joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment in which Justice Gorsuch joined. Justice Ginsburg filed a dissenting opinion in which Justice Sotomayor joined.
The majority held that, while the laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, religious and philosophical objections to gay marriage were protected views and in some instances protected forms of expression. Though Colorado law could protect gay persons in acquiring products and services on the same terms and conditions as were offered to other members of the public, the law had to be applied in a manner neutral toward religion.
Mr Phillips’s claim that using his artistic skills to make an expressive statement – a wedding endorsement in his own voice and of his own creation – had a significant First Amendment speech component and implicated his deep and sincere religious beliefs. The Court also noted that in 2012 Colorado had not recognized the validity of gay marriages, nor had the Supreme Court itself handed down judgment in Obergefell. There was some force to Mr Phillips’s argument that he was not unreasonable in believing that his decision had been lawful:
“State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case.”
In the opinion of the Court, the Colorado Civil Rights Commission’s treatment of Mr Phillips’s case had “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection”, to an extent that called into question the fairness and impartiality of the Commission’s adjudication. There had also been a difference of treatment as between Mr Phillips’s case and the cases of other bakers with objections to anti-gay messages who had been successful before the Commission.
The Commission’s treatment of Mr Phillips had therefore violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint:
“The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.”