Masterpiece Cakeshop Is Not a License to Discriminate

The Supreme Court’s decision makes clear that businesses cannot use the First Amendment to discriminate against LGBTQ customers.

Photo illustration: Supreme Court Justice Anthony Kennedy against a blue, green, yellow, and white background.
Justice Anthony Kennedy
Photo illustration by Slate. Photo by Eric Thayer/Getty Images.

The Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission leaves many questions about the proper balance between LGBTQ rights and First Amendment freedoms unanswered. But one thing is clear: Businesses do not have a license to discriminate against people on the basis of their sexual orientation. This is true even if the business objects to serving queer people because of a merchant’s religious beliefs.

In no uncertain terms, the Supreme Court confirmed that religious “objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable accommodations law.” In fact, the court reiterated that both statutory “laws and the Constitution can, and in some instances must, protect [gay people] in the exercise of their civil rights.”

And the court specifically emphasized that while clergy could not be compelled to participate in same-sex marriage ceremonies, that exception was narrowly confined. Otherwise, “a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws.” Put succinctly, Colorado’s law protecting LGBTQ people as they navigate the marketplace is “unexceptional.”

Instead, the court’s decision in favor of baker Jack Phillips rested largely on a very narrow point unlikely to have widespread implications for the constitutionality of LGBTQ anti-discrimination statutes. Justice Anthony Kennedy’s majority opinion took no issue with the substance of Colorado’s LGBTQ anti-discrimination law, but rather found fault in some of the rhetoric used by the Colorado Civil Rights Commission when it adjudicated the claim against Phillips. According to the court, certain commissioners’ comments at hearings on the case conveyed hostility toward Phillips’ sincere religious beliefs, thereby violating the state’s obligation to neutrality toward religion.

But make no mistake, the court’s perception that the anti-discrimination law was not being applied neutrally in this instance does not in any way undermine LGBTQ anti-discrimination laws more broadly. Instead, as emphasized at multiple turns by the court, the religious beliefs of business owners do not give them a license to discriminate against LGBTQ people.

Put differently, the decision does not force queer people back into the closet. In jurisdictions with statutes prohibiting discrimination on the bases of sexual orientation and gender identity in public accommodations, queer people still have the right to participate openly in society without fear of mistreatment. In citing to case law rejecting religious objections to race-based anti-discrimination laws, the Supreme Court seemed to put to rest the idea that protections for LGBTQ people are, in some way, constitutionally infirm compared to protections against race discrimination. States “can protect gay persons, just as [they] can protect other classes of individuals.”

While the Supreme Court’s narrow opinion is likely to create some confusion because the court ruled in favor of the merchant based on the case’s idiosyncratic facts, the opinion in many ways makes clear that LGBTQ anti-discrimination laws are consistent with the Constitution. With time, the Masterpiece Cakeshop opinion will be understood so as to provide robust protections for LGBTQ people. LGBTQ anti-discrimination statutes will continue to withstand challenges that they infringe on expression that might receive First Amendment protection outside of the commercial context. And pursuant to Masterpiece, any court-drawn exemptions to those statutes will be extremely narrow, prohibiting state agencies from engaging in open hostility toward religion while adjudicating discrimination claims.

Full disclosure: Scott Skinner-Thompson served as co-counsel to a group of Colorado organizations and individuals that submitted an amicus brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The opinions expressed here are the author’s own.