On June 4, 2018, the Supreme Court of the United States in Masterpiece Cakeshop v. Colorado Civil Rights Commission ruled in favor of a Colorado baker who refused to create a wedding cake for a same-sex wedding.  Although the baker’s objection was based upon his freedom of speech and the free exercise of religion, the Supreme Court did not address those issues specifically deciding they “must await further elaboration.” In fact, a similar case is pending before the Supreme Court involving a florist who refused to provide flowers for a same-sex wedding.

The baker, Jack Phillips, is described by the Supreme Court as a “devout Christian” who sincerely believes that “God’s intention for marriage from the beginning of history is that it is and should be the union of one man and one woman.”  In 2012, two men entered Phillips’ bake shop and told him they were interested in ordering a cake for “our wedding”.  When Phillips refused to do so, the men filed a discrimination complaint alleging they were denied services because of their sexual orientation in violation of Colorado’s Anti-Discrimination Act.  The Colorado Civil Rights Commission agreed with the couple, as did the Colorado Court of Appeals.

Prior to this matter reaching the Supreme Court, the focus of the dispute appeared to center on whether or not the conduct of Phillips – that is, creating and designing custom cakes – was expressive conduct such as to qualify as protected speech under the First Amendment.  Not so with the Supreme Court.  Although the Court abstractly referenced the “confluence of speech and free exercise principles” at the beginning of its decision, that is about as far as it went towards addressing those principles within the context of the dispute.

Instead, the Supreme Court held that the rulings of the Colorado Civil Rights Commission and the Colorado Court of Appeals must be set aside because the legitimacy of Phillip’s objections to creating the cake were not considered with the neutrality the First Amendment requires.  By way of example, the Court cited a comment made by a Commissioner who compared Phillip’s sincerely held religious beliefs to expressions of similar beliefs used to defend slavery and the Holocaust.  According to the Court, “[t]his 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 Court was also very critical of the Commission for its consideration of this case, where a baker objected based upon his religion, as compared to other cases where bakers were permitted to object based upon their conscience.

Thus, the Supreme Court’s decision in this instance is more narrow than some had anticipated.  Can the creation of cakes and other similar conduct be expressive such as to limit the government’s ability to restrict or compel it?  Not decided.  If Phillip’s conduct was expressive, does Colorado law withstand the required scrutiny by the Court?  Not decided.  But what was decided is that consideration of such issues inconsistent with our Constitution’s requirement of neutrality will not be tolerated.  And that it good news for everyone.  The rest will be decided on another day. Please contact our litigation team with any questions that you may have related to this issue at 412.242.4400.

Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.