Baker Takes the Cake in U.S. Supreme Court’s Narrow Holding on Refusal to Make Wedding Cake for Same-Sex Couple.

On June 4, 2018, a 7-2 United States Supreme Court in Masterpiece Cakeshop Ltd. et al. v. Colorado Civil Rights Commission et al. reversed discrimination penalties against a baker who refused to create a wedding cake for a same-sex couple. This long-anticipated decision turns narrowly on an administrative agency’s past treatment of the case and largely avoids the core constitutional issues involving free speech, religious freedom of the First Amendment, and asserted LGBTQ rights.

In 2012, a Colorado bakery refused to create a wedding cake for a same-sex couple, but offered to sell the couple any other type of cake or baked good the store offered. At the time of the baker’s refusal, Colorado did not recognize same-sex marriage. The couple filed a discrimination complaint with the Colorado Civil Rights Commission, which concluded the bakery had violated Colorado’s Anti-Discrimination Act (CADA) by refusing service based on sexual orientation and referred the case to a formal hearing before an Administrative Law Judge (ALJ). The ALJ sided with the couple and rejected the baker’s argument that requiring him to make a wedding cake to endorse same-sex marriage would violate his First Amendment rights, reasoning that preparing a wedding cake was not a form of protected speech and CADA is a “neutral law of general applicability” that does not violate the Free Exercise Clause. The Commission affirmed the ALJ’s finding, with one commissioner critically noting that religion is “one of the most despicable pieces of rhetoric that people can use” to hurt others. The Colorado Court of Appeals followed suit, stating, “The Free Exercise Cause does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.”

In reversing this decision, the U.S. Supreme Court concluded that the Commission had acted with an “impermissible hostility” that is inconsistent with the First Amendment’s guarantee that laws be applied in a neutral manner. The Court specifically pointed out that the commissioner’s reference to religion as “despicable” and “rhetoric” was inappropriate because it suggested that religion was insubstantial or insincere.

Turning to the application of Colorado law, the Court addressed discord between the state’s treatment of the present case and similar past cases. In past cases, the state sided with bakers relying on the First Amendment to refuse to bake cakes that depicted disapproval of same-sex marriage. In those cases, the State Civil Rights Division (charged with carrying out investigations on behalf of the Commission) reasoned that bakers had acted lawfully in refusing to create cakes the baker deemed “derogatory,” “hateful,” or “discriminatory,” and each baker was willing to sell other products to the prospective customers. Under similar circumstances here, however, the Commission took the opposite approach and noted that the message on the cake would be attributed to the customer and not the baker.

For these reasons, the Court concluded that the Commission “violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint,” and that the Court of Appeals failed to address the baker’s concern that the Commission had disfavored his religious objection. Instead, relying on Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), the Court concluded that “the Commission’s consideration of [the baker’s] case was neither tolerant nor respectful of his religious beliefs . . . and the government has no role in expressing or even suggesting whether the religious grounds for [an individual’s] conscience-based objection is legitimate or illegitimate.”

In limiting its holding to a decision that the baker was entitled to a “neutral decision maker who would give full and fair consideration to his religious objection,” the Court avoided core constitutional issues involving the First Amendment’s guarantee of religious freedom and claimed LGBTQ rights, simply noting that “there is some force” to the baker’s argument that he was not “unreasonable” in determining that his acts were lawful based on the fact that Colorado did not allow same-sex marriages at the time. The Court then noted that the outcome of similar cases “must await further elaboration in the courts.”

This holding offers little guidance on First Amendment rights for businesses in regard to services for LGBTQ customers. Businesses should work with their legal counsel to ensure legal compliance of any religion-based policies.