In Masterpiece, the Bakery Wins the Battle but Loses the War

In the Masterpiece Cakeshop case, the Supreme Court on Monday ruled for a bakery that had refused to sell a wedding cake to a same-sex couple. It did so on grounds that are specific to this particular case and will have little to no applicability to future cases. The opinion is full of reaffirmations of our country’s longstanding rule that states can bar businesses that are open to the public from turning customers away because of who they are. 

The case involves Dave Mullins and Charlie Craig, a same-sex couple who went to the Masterpiece Cakeshop in Denver in search of a cake for their wedding reception. When the bakery refused to sell Dave and Charlie a wedding cake because they’re gay, the couple sued under Colorado’s longstanding nondiscrimination law. The bakery claimed that the Constitution’s protections of free speech and freedom of religion gave it the right to discriminate and to override the state’s civil rights law. The Colorado Civil Rights Commission ruled against the bakery, and a state appeals court upheld its decision. 

Tell Congress to pass the Equality Act 

In reversing the lower court’s ruling, the Supreme Court focused on how this particular case was handled by the commission, which decides cases under Colorado’s nondiscrimination law. The court raised concerns about comments from some of the Colorado commissioners that they believed revealed anti-religion bias. Because of that bias, the court held that the bakery wasn’t treated fairly when the commission decided the discrimination claim. 

But — despite arguments from the Trump administration and other opponents of LGBT equality — the court didn’t decide that any business has a right to discriminate against customers because of who they are. Instead, the court’s decision affirms again and again that our nation’s laws against discrimination are essential to maintaining America’s open society and that states can pass and enforce those laws, including in the context of LGBT people. 

First, the court reaffirmed that lesbian, gay, and bisexual people are entitled to equal dignity. The ruling makes clear that it “is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” The decision continues: 

“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. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.” 

The court also reaffirmed its longstanding rule that states can prevent the harms of discrimination. It noted that while the “religious and philosophical objections” of business owners: 

“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 further recognized the danger of free speech and freedom of religion claims that the bakery advanced in this case, stating that:

“any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs say­ing ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.” 

The decision also recognizes that adopting a rule — as advocated by the bakery — that would allow businesses to turn gay people away carries a significant risk of harm. It outlines its own fear that “a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons.” This would result, the decision continues, “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.” 

Significantly, the court cited an earlier case, Newman v. Piggie Park Enterprises, Inc., where it rejected precisely the kind of claims that the bakery made here. Piggie Park was a chain of barbeque restaurants in Columbia, South Carolina, that claimed its religion required it to refuse to serve Black customers alongside white ones and that applying the 1964 Civil Rights Act would violate its religious freedom. The courts rejected that argument, with the Supreme Court calling it “frivolous.” 

The court on Monday ruled for the bakery because it “was entitled to the neutral and respectful consideration of [its] claims in all the circumstances of the case,” and the justices in the majority believed the bakery didn’t receive that basic fairness. The court said that “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

All of us deserve a dispassionate evaluation of our claims, either when we face discrimination or are accused of it. Those are principles we can all agree on. 

Monday’s decision gives a very narrow victory to the bakery. But the court has clearly signaled that the broader rule the bakery was seeking here — a constitutional right to discriminate and turn customers away because of who they are — is not in keeping with American constitutional tradition. 

There are many other cases in the pipeline that may soon give the court the opportunities to sort through the legal issues at the center of the Masterpiece Cakeshop case. One is Ingersoll v. Arlene’s Flowers, in which a florist shop refused to sell flowers to a gay couple for their wedding. The Washington state Supreme Court ruled unanimously that the shop had no constitutional right to turn the couple away, and a petition for review by the U.S. Supreme Court remains pending. 

In the meantime, Congress should pass the Equality Act, which would update our civil rights laws to provide all people with full protection from discrimination. At the ACLU, we will continue working to ensure that the Supreme Court strikes the right balance between equality and the freedoms of speech and religion. In the Masterpiece Cakeshop decision, the court reaffirmed that the latter should not be used to undermine the former.

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That's not a convincing response Kevin. A gay wedding cake baker would and should make a cake for a Christian couple, a hetero couple, a gay couple, a white couple, an interracial couple, and an Islamic couple, whatever the case may be. Simply insert any other term for "gay wedding cake baker" and it shouldn't matter. The baker has every right to disapprove on a personal level and can express such disapproval publicly, but does not have the right to discriminate against protected classes in a public setting. If the baker really does not want to make cakes in a business open to the public for same-sex marriages, he can just make cakes in a private sale business, doing outreach and only selling to clients that he wants to sell to. The baker probably won the case because it's the cake shop vs. colorado civil rights commission, and the colorado civil rights commission acted a bit recklessly in judging his views.

Shawna Hunter

Its a tough but important pill to swallow. We can't just dismiss people we disagree with as hateful and bigoted. We need to look at what they think amd why they think it. You can't change hearts and minds by forcing the hateful into the shadows. Let them speak in the full light of day and respond with better arguments.


Catholicism is a corporation of Persons too, Corporations are people too, and Beliefs are invisible people too, all of which pay no taxes. Beliefs state that Jesus was a white -man, but no proof is offered by the privileged white-man who nest the Legislature. Perhaps these have seen the white God. Taxes can be filed as a burden too, by lacking common sense use ideas, we might have to agree that privileges are not for all American people.


James I hope you are correct in saying this case "will have little to no applicability to future cases." Yet I cannot help but wonder if they didn't open a tiny crack in favor of the religious argument. I know you say they offered only concern about the anti-religion bias shown by the state commission deciding the case. I can't help but wonder where that narrow argument could lead to. I see all of the concerns the Court had regarding allowing any business to turn away gay customers, yet despite all those concerns, they let this one go. I'll be waiting for the Court's final decision and reasoning in Ingersoll v Arlene's Flowers.


My fear is that if the bakery is forced to make the cake, what happens when a KKK member comes in and wants a cake with a racial slur? It's a slippery slope. I find the baker's position abhorrent and fully support the community responding by not patronizing the bakery (which I, personally, would do) but picking and choosing which sentiments are okay to restrict and which aren't (vs. no restrictions) scares me. Super slippery slope.


There is no constitutional protection for hate speech which is what a racial slur would fall under.


That wouldn't be protected assuming the bakery didn't offer any cakes with slurs to anyone. Also, the KKK isn't a protected class in any state. If you offer a product, you can't discriminate in selling it based on sexual orientation (in Colorado and states with similar laws), but no one can come in and demand you make a product you don't offer to anyone. Bakeries typically sell wedding cakes; the Colorado law requires those that do not to discriminate in selling them to gay couples. Bakeries do not typically sell racist cakes with slurs written on them, and would not have to do so.


Actually, "hate speech" is protected by the Constitution. In a prior Supreme Court case, they ruled that using racial slurs is allowable free speech. Calling language that some find distasteful "hate speech" and unallowable is specifically what the First Amendment protects.


It's not hate if you call it religion.

Mister Sterling

Damn right. You nailed it.


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