Gay Americans Have Little to Fear From the Supreme Court’s Compromise in Masterpiece Cakeshop

Charlie Craig (L) and his spouse, Dave Mullins, embrace outside the US Supreme Court as Masterpiece Cakeshop vs. Colorado Civil Rights Commission is heard on December 5, 2017 in Washington, DC.
The US Supreme Court is to hear arguments on Tuesday in a case that has been described as the most significant for gay rights since it approved same-sex marriage two years ago.
The landmark case pits a gay couple, Dave Mullins and Charlie Craig, against a Colorado bakery owner who refused in July 2012 to make a cake for their same-sex wedding reception.
 / AFP PHOTO / Brendan Smialowski        (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)
Charlie Craig and Dave Mullins embrace outside the Supreme Court as Masterpiece Cakeshop v. Colorado Civil Rights Commission is heard on Dec. 5 in Washington. BRENDAN SMIALOWSKI/Getty Images

Like a good wedding cake, the Supreme Court’s 7–2 decision on Monday in Masterpiece Cakeshop v. Colorado Civil Rights Commission has a little something for everyone. Gay people, who were justifiably terrified that the case could undermine their right to equal service, get a reaffirmation of their “dignity and worth.” Religious-liberty advocates get a continued expansion of the Free Exercise Clause. Anti-gay activists get a victory—a midsize and possibly temporary but still very real win, in a case that few initially expected to even reach the Supreme Court.

Who loses? Everybody who hoped this decision would definitively settle the ostensible clash between LGBTQ rights and religious freedom. In the end, Masterpiece Cakeshop barely resolves anything and doesn’t even touch the free-speech claim at the center of the case. Instead, it punts that question, leaving lower courts (and American society) to continue fighting about how, exactly, Justice Anthony Kennedy should feel about it. A great wedding cake might leave you wanting more, but Masterpiece Cakeshop just leaves you craving something you can actually sink your teeth into.

The story of Jack Phillips, Colorado’s most famous baker, has been widely told by the publicity team at Alliance Defending Freedom, or ADF, the anti-LGBTQ rights law firm that represents him. In 2012, Charlie Craig and Dave Mullins asked Phillips to bake them a wedding cake. He refused, explaining that he would not make wedding cakes for same-sex couples. But Colorado law prohibits discrimination on the basis of sexual orientation in public accommodations, so Craig and Mullins filed a complaint with the Colorado Civil Rights Commission. The commission referred the case to a state administrative law judge, who found that Phillips had, indeed, violated Colorado’s civil rights law. Then the commission affirmed the judge’s decision, ordering him to stop turning away gay couples and to train his staff to comply with the law.

ADF urged Phillips to fight the order, but initially he had little luck. The Colorado Court of Appeals affirmed the commission’s decision, and the Colorado Supreme Court declined to hear his appeal. Last June, however, the U.S. Supreme Court took the case. Then, in September, Donald Trump’s Department of Justice weighed in on the side of the baker, arguing that Colorado’s actions violated his right to free expression. This little case was shaping up to become a vehicle that would finally resolve a cardinal question of constitutional law: whether or not the First Amendment’s Free Speech Clause could be used to undermine decades of nondiscrimination law and subject gay people to the constant threat of humiliation in the public marketplace.

But SCOTUS didn’t directly answer that question on Monday. Rather, it chose to handle this case solely on free-exercise grounds. The Supreme Court has held that the government violates the First Amendment’s Free Exercise Clause when it targets a particular faith for disfavored treatment. In an opinion by Justice Anthony Kennedy, the court found here that the Colorado Civil Rights Commission had done precisely that in its dealings with Jack Phillips. To prove his point, Kennedy collects comments made by commissioners during the proceedings. He found one comment especially troubling:

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, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. 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.

For Kennedy, and the justices who joined his opinion, this statement clinches the free-exercise infringement. “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use,’ ” he wrote, “is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.” He continued:

The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. 

Kennedy was also perturbed by the fact that the Colorado Civil Rights Commission allowed bakers to refuse to bake cakes with anti-gay images and text. This “disparate consideration,” he wrote, further illustrates the commission’s “hostility to religion.”

As Justice Ruth Bader Ginsburg notes in her dissent—joined only by Justice Sonia Sotomayor—this comparison is quite odd, since Charlie Craig and Dave Mullins did not request any text on their cake. Ginsburg thoroughly debunks this strange line of reasoning, highlighting the fact that Phillips turned away Craig and Mullins because of their identity, not any particular message. Justices Elena Kagan and Stephen Breyer make a similar point in their concurrence. On the other end of the ideological spectrum, Justices Clarence Thomas and Neil Gorsuch signaled their belief that Phillips probably does have a free-speech right to reject gay customers. This sharp split will have to simmer until the court takes a similar case.

But the court seems likely to stay away from this issue for a while. To be sure, Kennedy’s opinion for the court is unfortunate in many ways. He stretches free-exercise law, for instance, to find a violation here in a way that he almost certainly will not in the travel-ban case—indicating what appears to be a special solicitude for anti-gay Christians.

But Kennedy’s opinion is also littered with dicta that shows states how they can enforce LGBTQ nondiscrimination law without crashing into constitutional problems. He approvingly describes states’ authority “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.” He clarifies that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” And he reaffirms the basic principle 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 public accommodations law.”

These asides suggest that Kennedy—unlike Thomas and Gorsuch—would not promulgate a broad free-speech rule that allows businesses to discriminate against gay couples with impunity. He has, in effect, given states a road map, explaining how they can enforce LGBTQ civil rights laws without triggering free-exercise concerns. (Pro tip, civil rights commissioners: do not publicly opine on a homophobe’s homophobia.)

Still, none of Kennedy’s pro–gay tolerance signaling will prevent ADF and its allies from touting Masterpiece Cakeshop as a rout for anti-gay religious liberty. And the opinion arguably leaves enough wiggle room for one of Trump’s more rabid judicial appointees to wreak havoc on nondiscrimination law. But it is still, at heart, a compromise, a Kennedy special that leaves everyone wanting more. Masterpiece Cakeshop, in other words, is largely filler. And it manages to give both sides a boost as they hunker down for the next round of cake wars.