The Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission was among the most highly anticipated of this Term. The case pit principles of religious liberty and free speech against LGBT equality. But the Court’s ruling is anything but a blockbuster. The Court delivered a clear victory for Jack Phillips, the baker who refused to bake a wedding cake for a same-sex couple, and in a legal area full of 5-4 splits, the 7-2 ruling was surprising. But the ruling was 7-2 because the Court crafted its rationale based on specific and idiosyncratic facts of the case, so the decision will have limited effect on future cases. Moreover, what signals there are in the majority opinion about the larger conflict suggests that issue may well be resolved against the broadest claims made by merchants seeking religiously-based exemptions from the command of antidiscrimination laws.
First, some background: The tension between claims for gay equality and religious liberty has long been part of the same-sex marriage debate. The Supreme Court’s 2015 decision in Obergefell v. Hodges ruled that same-sex couples have a fundamental right to marry, but did not determine the legal status of claims lodged by those who asserted that their religious beliefs precluded them from providing goods or services to same-sex weddings. Some wedding vendors—not only bakers, but florists, photographers and others—have argued that their First Amendment rights to the free exercise of religion and to free speech trumped laws that many states have enacted to ban discrimination in public accommodations based on sexual orientation. One of the central, and potentially broader, arguments made by these vendors takes the form of the free speech claim that a vendor cannot be forced by the state to express support for same-sex marriage by providing the goods and services requested by the couple. Many questions were raised by this free speech claim: does a baker really “express” anything by providing a wedding cake? Which other merchants can claim this expressive right, and how ought such free speech claims be weighed against the equality of the gay patrons who are turned away? Masterpiece was highly anticipated for how the Court would resolve this sharp conflict of values.
Instead of squarely engaging this question, the Court, by a 7-2 vote, ruled that the Colorado administrative officials who ruled against the same-sex couple had disparaged the baker’s religion in ways that denied him a fair and impartial decisionmaker. The Court was concerned here principally about two things: first, some comments made by administrative officials that the justices thought put religion in a negative light; and second, the fact that other Colorado bakers who had declined to bake a cake with statements disparaging same-sex marriage and couples had been allowed to decline to provide those cakes without running afoul of antidiscrimination law, while Phillips had been found to have violated that law failing to bake the cake for a same-sex wedding. These facts loomed so large in the opinion that they converted what was poised to be a broad free speech case into one about the fairness of this one Colorado administrative proceeding.
There is well known case law establishing that the government cannot show targeted hostility to religion or single it out for disfavored treatment when it applies neutral laws, such as antidiscrimination laws. But by placing exclusive reliance on this principle, the Court quite explicitly left for another day the more fundamental question of whether wedding vendors who do not want to serve same-sex couples can decline service where there are no hostile comments about religious objections or claims that religious objectors are singled out for especially harsh treatment. More than once, Justice Kennedy said that issue would have to wait for future resolution.
But postponing the issue does not mean the Court said nothing of significance for the ultimate resolution of this question. Indeed, if one were reading tea leaves, there is much to suggest that a majority of the Court is not ready to accept a broad principle of First Amendment-based exemption for merchants in this area, whether claims for exemption are rooted in free speech or free exercise. Three portions of the majority opinion seem especially telling on this point:
- At one point, Justice Kennedy’s majority opinion emphasized that American “society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity or worth, ” such that “the exercise of their freedom on terms equal to others must be given great weight by the courts.” “Great weight” is an important signal to future courts.
- More specifically, the majority said that while “religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners to deny protected persons equal access to goods and service under a neutral and generally applicable public accommodations law.” That sentence would seem to suggest that it is only because of the explicit hostility to religion that Jack Phillips won this case. Absent such a singling out of religions for disfavored treatment, the “general rule” is that service cannot be denied.
- Kennedy said any principle favoring bakers like Phillips 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.” Both sides in the case made “slippery slope” arguments, but this passage suggests that the slope toward broad license to deny service to gay patrons loomed large and explains the narrow rationale deployed in the opinion.
After Masterpiece, courts in these kinds of cases will be alert for signs that those who assert religious objections have been singled out by administrative decisonmakers for special disfavor, but these passages in the opinion suggest reluctance on the Court to fashion any broad exemptions for merchants, whether framed in terms of speech or free exercise.
Jane S. Schacter is the William Nelson Cromwell Professor of Law at Stanford Law School. Her scholarship focuses on statutory interpretation and legislative process, constitutional law, and sexual orientation law.