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When is a Cake Not Just a Cake?

In 2012 a same-sex couple attempted to place an order for a wedding cake with Masterpiece Cakeshop. The shop’s owner, Mr. Phillips, refused to create a custom cake for their wedding because of his opposition to same-sex marriage. The couple filed a charge with the Colorado Civil Rights Commission, which ruled in the couple’s favor. This decision was upheld on appeal, and ultimately reached the U.S. Supreme Court, which vacated the Commission’s decision.

The Court explained that great weight and respect must be given both to preventing people from being discriminated against based on sexual orientation and to the religious and philosophical objections many people hold to same-sex marriage. While the general rule is that such objections do not allow business owners to deny equal access to goods and services based on sexual orientation, there are important exceptions to this rule. The Court noted that if a member of the clergy whose religious beliefs were opposed to same-sex marriage objected to performing such a marriage, his constitutional right to free exercise of religion would prohibit the State from requiring that he do so. On the other hand, a baker who refused to provide any goods for a same-sex wedding would likely lose. Balancing the interests involved in such claims requires a neutral and respectful consideration of both sides.

The Court then held that the Commission denied Mr. Phillips this neutral and respectful consideration. This was demonstrated by (1) a series of statements made by Commissioners that indicated hostility to Mr. Phillips’ beliefs, particularly a statement that religion has been used to justify events such as slavery and the holocaust, and calling his actions a despicable piece of rhetoric in using religion to hurt others; and (2) the Commission’s failure to explain why it ruled against Mr. Phillips, but in favor of bakeries that refused to make cakes with messages disapproving of same-sex marriage. Because the Commission’s treatment of this case violated its duty under the free exercise clause to consider Mr. Phillips’ religious objections with neutrality, its order was set aside.

In concurring with this decision, Justices Kagan and Breyer stated that the Commission’s failure to differentiate the claims against bakers who refused to bake cakes with messages disapproving of same-sex marriage was particularly disquieting because a valid basis to distinguish those claims was obvious. The other bakers refused to bake a cake that had a specific message on it, and would have done so regardless of the identity of the person asking for the cake. On the other hand, Mr. Phillips would have baked the requested wedding cake for an opposite-sex couple, which constituted different treatment based on sexual orientation.

In a mirror-image concurrence, Justices Gorsuch and Alito asserted that there is no valid basis for distinguishing the bakers who wouldn’t bake cakes with the anti-same-sex marriage messages and Mr. Phillips because, just as cakes celebrating same-sex weddings are usually going to be requested by persons of a particular sexual orientation, so too will cakes expressing religious opposition to same-sex weddings usually be requested by persons of a particular faith. Therefore, both refusals are related to a protected class. They then asserted that it is unavailing to try and distinguish those cases by arguing that a cake for a same-sex wedding does not convey a message. Instead, such a cake inherently conveys a message of support for same-sex marriage.

Following up on the theme of a wedding cake inherently conveying a message, Justices Gorsuch and Thomas issued an opinion addressing Mr. Phillips’ claim regarding freedom of expression. Their opinion states that the government cannot compel speech without running afoul of the First Amendment. Because providing a cake for a same-sex wedding inherently communicates support for same-sex marriage, no one can be forced to bake such a cake.

Finally, Justices Ginsburg and Sotomayor dissented. They would have found that a same-sex couple requesting a wedding cake is asking for a cake celebrating their wedding, not a cake celebrating same-sex weddings in general. They also felt that the comments cited by the majority did not undo Mr. Phillips’ unlawful conduct, and should not allow that conduct to stand.

Following this decision, the Court remanded similar cases in which violations of law were found in the denial of services in support of same-sex weddings back to the lower courts for consideration in light of the Masterpiece Cakeshop decision. One of the first of those cases has now been decided.

The Washington Supreme Court had held that a florist could not refuse to provide flowers for a same-sex wedding. After the U.S. Supreme Court remanded the case for consideration of the Masterpiece Cakeshop decision, the Washington Supreme Court re-affirmed its ruling against the florist. The court found that there was no evidence that its decision, or that of the lower court, was tainted with unlawful animus. Neither court had disparaged the florist’s religion, nor had either court treated similarly situated parties differently. Furthermore, when the florist tried to argue that the Plaintiff had shown improper animus towards the florist’s religion, the court held that any such animus was irrelevant, as the issue was whether the decision-makers acted improperly.

It is likely that most, if not all, of the courts whose decisions were remanded in light of Masterpiece Cakeshop, will render similar findings. Given the strong beliefs of both sides in this fight, it is likely that such lawsuits will continue to be brought forward.