Masterpiece Cakeshop proprietor Jack Phillips, an evangelical Christian who won’t bake cakes with alcohol (or cakes for bachelor parties or Halloween) was sued by the Colorado Civil Rights Commission over his refusal to design a custom wedding cake for a same-sex couple. The Supreme Court, per Justice Anthony Kennedy, handed Phillips a surprisingly lopsided 7-2 victory Monday in his six-year battle with the commission. But those who had hoped that the Court’s decision might put an end to a disturbing assault on First Amendment rights will have to keep the sparkling cider corked for another day.

Kennedy decided the case on a narrow, fact-specific ground particular to this case—the apparent religious bias of the commission against Phillips—while expressly declining to decide the more basic questions of the religious and free speech rights of creative professionals and artisans who oppose same-sex marriage. Kennedy’s triangulating avoidance won the votes of two of the four members of the Court’s liberal bloc, Justices Elena Kagan and Stephen Breyer, swelling the majority made up of Kennedy and the four conservative justices. But the Court will have to decide the larger issues in another case.

Phillips’s legal saga began in July 2012, when a gay couple, Charlie Craig and David Mullins, came to his suburban Denver shop seeking one of his elaborate baked creations for their wedding—two years before same-sex marriage was even legal in Colorado. He declined the business because of his religious beliefs, but offered to sell them any off-the-shelf baked goods, or to design cakes for them for other occasions. After complaining about Phillips online, Craig and Mullins received a free custom wedding cake from one of the 67 other cake artists in the Denver area (including one a tenth of a mile from Masterpiece) listed in

The Civil Rights Commission found that Phillips had discriminated against Craig and Mullins in violation of the state’s gay rights law and ordered him to design wedding cakes for gay couples if he continued to do so for straight couples, as well as to institute “comprehensive staff training” and to file “quarterly compliance reports” with the state. Rather than violate his conscience, Phillips stopped making any wedding cakes, thus losing 40 percent of his business. A Colorado appeals court affirmed the Commission’s decision and the state’s Supreme Court declined to hear the case, but the U.S. Supreme Court granted review.

Phillips’s case is one of a series around the country in which civil rights authorities and gay couples have brought actions under state or local gay rights laws to compel photographers, florists, bakers, and other small businesses and craftspeople to provide customized services for same-sex weddings, frequently requiring their attendance at the ceremonies, despite their religious objec­tions. Like the others in the dock in these cases, Phillips challenged the commission’s action on two constitutional grounds, alleging violations of his First Amendment rights to free exercise of religion and freedom of speech. However, the religious-freedom claim in these cases is largely precluded by Justice Antonin Scalia’s decision in Employment Division v. Smith, a 1990 case involving peyote use at a Native American Church, which held that “generally applicable laws” incidentally burdening religion are subject to only minimal constitutional scrutiny. Thus the arguments in Phillips’s case, as in the others, have focused primarily on the free speech claim—specifically, the argument that being required to use one’s creative talents to “celebrate something that offends your beliefs” or to otherwise bear witness against one’s conscience violates longstanding precedent against compelled speech.  As I’ve argued previously, such enforced speech “has an Orwellian cruelty that makes it even more vile than negative restraints on freedom.”

Justice Kennedy’s majority opinion, however, refused to address either the free speech issue or the main religious freedom issue. Rather, Kennedy latched onto a much narrower free exercise of religion issue, holding that the Colorado Commission’s proceedings were tainted by “religious hostility” against Phillips and that he was thus denied a “neutral and respectful consideration” of his claims. As he had at oral argument, Kennedy zeroed in on the statement of one of the commissioners that:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust . . . And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

Kennedy stressed that none of the other commissioners had objected to these comments, and that the state had not disavowed them. As further proof of bias, Kennedy also cited the commission’s rejection of claims against bakers who refused to make cakes with Christian anti-gay-marriage themes, noting that the state can’t respect those bakers’ conscientious objections to such cakes but not respect Phillips’s religious objection to same-sex wedding cakes.

Torn between his devotion to “the rights and dignity of gay persons” and “fundamental freedoms under the First Amendment,” including the expression of “religious and philosophical objections to gay marriage,” Kennedy punted, concluding:

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.

The law, awaiting “further elaboration,” is little different than it was last week. A petition for review in at least one similar case, involving a Washington State florist, is pending before the Court. Justices Kagan and Breyer made clear in a concurring opinion in this week’s decision that, absent the explicit religious bias present in Masterpiece Cakeshop, they will almost certainly return to the liberal fold. So once again, absent a change in the composition of the Court, Anthony Kennedy will remain the swing vote, as he was expected to be here. The question of how free we are to exercise our conscience on the basis of religious belief remains in abeyance.

Photo: Sergey Nazarov/iStock


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