A Bittersweet Cake: SCOTUS Maintains the Status Quo in Masterpiece Cakeshop

 The Feast is Over

The Supreme Court recently held in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission that an adjudicatory body’s religiously hostile acts, regarding a cake shop owner’s reasons for declining to make a cake for a same-sex couple’s wedding, violated the free exercise clause. I argued in Masterpiece Cake Shop: A Recipe for Constitutional Avoidance for the Court to make the “easiest and narrowest possible ruling.” The Court did precisely that.

Reviewing the Meal

In 2012, Jack Phillips refused to make a wedding cake for a gay couple, citing sincere religious beliefs. The couple filed a complaint with Colorado’s civil rights commission. The commission held that Phillips violated Colorado’s anti-discrimination law. The decision was later upheld by an appeals court.

The Supreme Court’s opinion, written by Justice Kennedy, applied two precedents to the facts of this case. After reviewing recent developments in marriage case law, the Court recited two fundamental First Amendment Law doctrines. First, generally-applicable laws may limit the exercise of religious beliefs. Second, no government action may be based on hostility toward a religion or religion generally.

In this case, the underlying law was permissible, but some non-neutral words of the commission were worrisome. In particular, one commissioner made hostile statements against religion—neither disavowed or objected to. As further evidence of non-neutral intent, the Court found the commission had favored other bakers’ conscience-based objections against designing cakes with anti-gay-marriage massaging. The Court held that the commission did not give Phillips, and his religion-based objections, the same fair shake.

Taken together, the Court concluded that the Commission’s actions toward religion were filled with fatal non-neutrality. The Court held in favor of Phillips for not receiving fair treatment.

Three concurring opinions made some separate points. First, it seems Justice Kagan emphasized the ability of state actors to distinguish message-based objections from class-based objections. Second, Justice Gorsuch appears to dislike treating religious-objections and conscience-based objections with higher and lower bars for government leniency. Lastly, for addressingPhillip’s free-speech claims, Justice Thomas took the cake. He brought numerous arguments for speech and religious expression, finding Phillips an artist and cakes his canvas.

Justice Ginsburg dissented. She disagreed that a wedding cake is speech, that Phillips was disparately treated, and that the commission’s non-neutral statements were insufficient to warrant reversal.


At a societally symbolic level, some heralded the outcome while others derided it. As for the legal implications, the Court slightly expanded on Church of Lukumi that, regarding non-neutral religious treatment an adjudicatory body’s statements can be reviewed the same as a legislature’s statements. On the other hand, the fact that Justice Kennedy took time to note the hostile comments were not objected to or disavowed may show the Court’s willingness to counterbalance future non-neutral comments if ameliorating statements are made. Overall, it appears the Court’s holding does little to limit or expand LGBT and religious rights substantively; it does less to expand a creator’s free-speech protections for hand-crafted products.

In the end, after following the canon of constitutional avoidance, “today’s ruling seemed to leave open at least as many questions as it resolved.” The final review of this meal, it’s precedential value, is a resounding “meh.”

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