Masterpiece Cakeshop is a bakery in Lakewood, Colorado, a suburb of Denver. The shop offers a variety of baked goods, ranging from cookies and brownies to elaborate custom-designed cakes for birthday parties, weddings, and other events.
Jack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips is a devout Christian. He has explained that his “main goal in life is to be obedient to” Jesus Christ and Christ’s “teachings in all aspects of his life.” And he seeks to “honor God through his work at Masterpiece Cakeshop.” One of Phillips’ religious beliefs is 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.” To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs.
Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of 2012. Craig and Mullins were planning to marry. At that time, Colorado did not recognize same-sex marriages, so the couple planned to wed legally in Massachusetts and afterward to host a reception for their family and friends in Denver. To prepare for their celebration, Craig and Mullins visited the shop and told Phillips that they were interested in ordering a cake for “our wedding.” Phillips informed the couple that he does not bake wedding cakes for same-sex weddings. He explained, “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”
The following day, Craig’s mother, who had accompanied the couple to the cakeshop and had been present for their interaction with Phillips, phoned to ask Phillips why he had declined to serve her son. Phillips explained that he does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage, and also because Colorado (at that time) did not recognize same-sex marriages. He later explained his belief that “to create a wedding cake for an event that celebrates something that directly goes against the teachings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.”
Discrimination by places of public accommodation
The Colorado Anti-Discrimination Act (CADA) prohibits several forms of discrimination by places of “public accommodation.” These include discrimination on the basis of sexual orientation as well as other protected characteristics. CADA in relevant part provides as follows:
It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.
The Act defines “public accommodation” broadly to include any “place of business engaged in any sales to the public and any place offering services … to the public,” but excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes.”
CADA establishes an administrative system for the resolution of discrimination claims. Complaints of discrimination in violation of CADA are addressed in the first instance by the Colorado Civil Rights Division. The Division investigates each claim, and if it finds probable cause that CADA has been violated, it will refer the matter to the Colorado Civil Rights Commission. The Commission, in turn, decides whether to initiate a formal hearing before a state Administrative Law Judge (ALJ), who will hear evidence and argument before issuing a written decision. The decision of the ALJ may be appealed to the full Commission, a seven-member appointed body. The Commission holds a public hearing and deliberative session before voting on the case. If the Commission determines that the evidence proves a CADA violation, it may impose remedial measures as provided by statute. Available remedies include, among other things, orders to cease-and-desist a discriminatory policy, to file regular compliance reports with the Commission, and “to take affirmative action, including the posting of notices setting forth the substantive rights of the public.”
Shortly after the couple’s visit to the shop, Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips in September 2012. The complaint alleged that Craig and Mullins had been denied “full and equal service” at the bakery because of their sexual orientation, and that it was Phillips’ “standard business practice” not to provide cakes for same-sex weddings.
The Civil Rights Division opened an investigation. The investigator found that “on multiple occasions,” Phillips “turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception” because his religious beliefs prohibited it and because the potential customers “were doing something illegal” at that time. The investigation found that Phillips had declined to sell custom wedding cakes to about six other same-sex couples on this basis. The investigator also recounted that, according to affidavits submitted by Craig and Mullins, Phillips’ shop had refused to sell cupcakes to a lesbian couple for their commitment celebration because the shop “had a policy of not selling baked goods to same-sex couples for this type of event.” Based on these findings, the Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission.
The Commission found it proper to conduct a formal hearing, and it sent the case to a State ALJ. The ALJ ruled that it was undisputed that the shop was subject to state public accommodations laws, and that Phillips’ actions constituted prohibited discrimination on the basis of sexual orientation, not simply opposition to same-sex marriage as Phillips contended.
Phillips contended that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion. The ALJ disagreed, relying on a 1990 case in which the United States Supreme Court ruled that “neutral laws of general applicability” do not violate the First Amendment’s protection of religious freedom despite any burden they impose on religion. Employment Division v. Smith, 494 U.S. 872 (1990). The ALJ determined that CADA is a neutral law of general applicability and therefore that applying it to Phillips in this case did not violate the First Amendment’s guaranty of religious freedom.
The Commission affirmed the ALJ’s decision in full. The Commission ordered Phillips to “cease and desist from discriminating against … same-sex couples by refusing to sell them wedding cakes or any product they would sell to heterosexual couples.” It also ordered additional remedial measures, including “comprehensive staff training on the public accommodations section” of CADA “and changes to any and all company policies to comply with … this Order.” The Commission additionally required Phillips to prepare “quarterly compliance reports” for a period of two years documenting “the number of patrons denied service” and why, along with “a statement describing the remedial actions taken.
Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission’s legal conclusions and remedial order. Phillips sought review by the United States Supreme Court.
The Supreme Court’s ruling
In Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission, 2018 WL 2465172 (2018), the Supreme Court began its ruling by noting that “our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” and that “the exercise of their freedom on terms equal to others must be given great weight and respect by the courts.” At the same time, however, “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”
Nevertheless, while those religious and philosophical objections are protected, “it is a general rule that such 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.”
The Court stressed that Phillips “was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case,” but that “the neutral and respectful consideration to which he was entitled was compromised here by the Civil Rights Commission’s treatment of his case which had some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.” That hostility
surfaced at the Commission’s formal, public hearings, as shown by the record… . On July 25, 2014, the Commission met again… . [During this meeting] the commissioner stated: “I would also like to reiterate what we said in the hearing or the last meeting. 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… .”
To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” 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. 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 against 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.
The court noted that another indication of hostility “is the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.” In fact, on at least three other occasions
the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service… . The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism… . In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections.
Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers’ conscience-based objections as legitimate, but treated his as illegitimate—thus sitting in judgment of his religious beliefs themselves.
The Supreme Court observed: “The Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.”
The Court concluded that “the Commission’s treatment of Phillips’ case violated the state’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” It added:
The government, if it is to respect the Constitution’s guarantee of free exercise [of religion] cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion. Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.”
Factors relevant to the assessment of governmental neutrality include
The historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decision-making body. In view of these factors the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phillips’ religious beliefs. The Commission gave “every appearance” of adjudicating Phillips’ religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it. It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires… . The official expressions of hostility to religion in some of the Commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires. The Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside.
Application of the Supreme Court’s ruling
The Supreme Court’s ruling is relevant to clergy, churches, and business owners with sincere religious beliefs for these reasons:
1. Relevance to clergy. While not required by its ruling, the Court made the following gratuitous statement regarding the ability of clergy to perform, or not perform, same-sex marriages based on their religious beliefs:
When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then 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 that ensure equal access to goods, services, and public accommodations.
2. Relevance to churches. The Court’s ruling did not address the application of the nondiscrimination provisions of public accommodations laws to churches. For example, many state and local public accommodations laws prohibit discrimination by places of public accommodation on the basis of sexual orientation and marital status. A question that many church leaders are asking is whether a church that rents its sanctuary to the general public for heterosexual weddings violates such a law by barring same-sex couples from using the church for a wedding ceremony. Does generating rental income from weddings performed for nonmembers make it a place of public accommodation subject to all the nondiscrimination provisions of a public accommodations law? This issue was not addressed by the Court’s decision, other than indirectly by the Court’s conclusion that the First Amendment guaranty of religious freedom requires government neutrality toward religion both in language and in the enforcement of public accommodation laws.
3. Relevance to business owners with sincere religious beliefs. The Court’s decision demonstrates that the civil courts cannot adjudicate the application of the nondiscrimination provisions in a public accommodations law to business owners in a way that violates their religious beliefs if there is evidence of hostility to religion by the courts or the civil rights agency tasked with enforcement of the law. Unacceptable hostility or bias may consist of:
Hostile, disparaging statements concerning religious belief (i.e., likening Christianity to slavery or the Holocaust).
More favorable treatment for atheistic or agnostic beliefs (i.e., failure to prosecute bakeshops that refuse to provide services to Christians).
The historical background of the decision under challenge.
The specific series of events leading to the enactment or official policy in question.
The legislative or administrative history, including contemporaneous statements made by members of the decision-making body.
As a result, the response of business owners with sincere religious beliefs in opposition to one or more of the prohibited forms of discrimination under a state or local public accommodations law will be to find any evidence of disparate or less favorable treatment of religious belief.
If the evidence demonstrates that the courts or civil rights agencies have treated religious belief with neutrality and respect, then the substantive issue of the protection, if any, provided by the First Amendment guaranty of religious freedom is raised. It is far from certain that such a defense will be successful. Consider the following two quotations from the Masterpiece Cakeshop ruling. The first is from the majority opinion by Justice Kennedy, and the second is from Justice Kagan’s concurring opinion:
“The religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. Nevertheless … it is a general rule that such 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.”
“As this Court has long held, and reaffirms today, a vendor cannot escape a public accommodations law because his religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait. A vendor can choose the product he sells, but not the customers he serves—no matter the reason.”
Two other cases to consider
A few days after the Supreme Court issued its ruling in the Masterpiece Cakeshop case, the Court addressed a similar case in Washington state involving a Christian florist shop owner (Barronelle Stutzman) who was prosecuted for violating the nondiscrimination provision in a state public accommodations law for refusing to prepare floral arrangements for a same-sex wedding. The Washington Supreme Court ruled that the florist had violated the public accommodations law and rejected her religious liberty defense. But the United States Supreme Court, in a two-sentence order, vacated the judgment of the state supreme court and remanded the case back to that court “for further consideration in light of Masterpiece Cakeshop.” The owner of the floral shop has argued that the State of Washington did not treat her religious beliefs with sufficient respect and neutrality, pointing out that at least one other floral shop that refused to provide services to Christians was not prosecuted for violating the public accommodations law.
In another case, decided a few weeks before Masterpiece Cakeshop, an Arizona state appeals court ruled that a city ordinance barring discrimination based on sexual orientation or marital status by places of public accommodation did not violate the constitutional rights of a wedding design business that refused to provide services for a same-sex wedding. Brush & Nib Studio v. City of Phoenix, 418 P.3d 426 (Ariz. App. 2018). The court sidestepped the question of nonreligious bias by the state courts or civil rights agency that was decisive in the Masterpiece Cakeshop case, and addressed directly the substantive question of a business owner’s right to refuse to provide services for a same-sex wedding on the basis of his religious beliefs. It concluded that the First Amendment guaranty of religious freedom did not insulate the business owner from liability for refusing to provide services for a same-sex wedding. The court concluded that the city public accommodations ordinance did not violate the First Amendment guaranty of religious freedom because it did not “substantially burden” the exercise of religious beliefs:
A substantial burden on the free exercise of religion requires more than a government action which merely “decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion,” and instead is akin to the government coercing an individual to act contrary to his religious beliefs or penalizing faith… . Here [the owner] has failed to prove that [the ordinance] substantially burdens his religious beliefs by requiring that he provide equal goods and services to same-sex couples. He is not penalized for expressing his belief that his religion only recognizes the marriage of opposite-sex couples. Nor is he penalized for refusing to create wedding-related merchandise as long as he equally refuses similar services to opposite-sex couples. [The ordinance] merely requires that, by operating a place of public accommodation, he provide equal goods and services to customers regardless of sexual orientation. He is free to discontinue selling custom wedding-related merchandise and maintain the operation of [the business] for its other business operations. What he cannot do is use his religion as a shield to discriminate against potential customers.
Even if [the owner] had met his burden of proof to demonstrate that [the ordinance] places a substantial burden on their religious exercise, it is still constitutional because the city has a compelling interest in preventing discrimination, and has done so here through the least restrictive means. When faced with similar contentions, other jurisdictions have overwhelmingly concluded that the government has a compelling interest in eradicating discrimination… .
It goes without saying that providing equal access to places of public accommodation does “not simply guarantee access to goods or services,” but “serves a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace.”
The court concluded that the city’s obligation “is to not enact, interpret or apply its laws or regulations based on hostility to a religion or religious viewpoint. There is no evidence in the record to support any suggestion that the city’s adoption of [its public accommodations law] or its interpretation as it relates to [the owner] has been anything other than neutral toward and respectful of their sincerely-expressed religious beliefs.” As a result, it is unlikely that the business owner will find relief under the Masterpiece Cakeshop case unless he can prove that the ordinance was applied in a way that was biased toward religion.
For more on issues related to public accommodation laws, see the downloadable resource Church Issues: Same-Sex Marriage and Gender Identity, available on CLTStore.com.