Today, the Supreme Court decided Masterpiece Cakeshop, which involves whether a cake baker can be forced to bake a cake for a same-sex couple’s wedding. (We previewed the case here.) In a 7-2 decision, in an opinion written by Justice Kennedy, the Court ruled in favor of the cake shop and found that the Colorado Civil Rights Commission violated the Free Exercise Clause.
We think this case is a win for both sides. The Court said that “while … 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.” But at the same time, the government must give “neutral and respectful consideration” to people objecting to such laws on religious grounds.
The Court’s problem with the Commission was that it did not give “neutral and respectful consideration” to the cake baker’s sincerely held religious views. Justice Kennedy highlighted a statement made by a member of the Colorado Civil Rights Commission that, according to the Court, “disparaged” the cake baker’s religion. That member said, “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.” The Court also noted that no commission member objected to that statement, that the Colorado courts did not address that statement, and that the Commission did not disavow that statement even when the case was before the Supreme Court.
Importantly, the Court did not address the free-speech issue. The baker claimed that he was being forced to “speak,” because requiring him to bake cakes for same-sex weddings would send the message that he personally supports same-sex marriage, which he does not. This was a hotly contested issue at oral argument. Does a florist engage in “speech” when arranging flowers? A make-up artist? Where is the line between “speech” and “conduct”? Only two justices, Thomas and Gorsuch, thought that the baker was engaging in “speech.” The other seven declined to express a view on the issue. We’ll have to wait for the next case to find out whether cake-baking is speech.
Case: Masterpiece Cakeshop Ltd. v. Colo. Civil Rights Comm’n, No. 16-111 (U.S. June 4, 2017) (opinion here)