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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Arguing that refusing to service a celebration for same sex marriage constitutes discrimination against gays is like arguing that refusing to service a celebration for abortion constitutes discrimination against women.


Spot on. Many here want to have it all one way but not the other. Freedom of speech means that a person is free to say what they will, and the SCOTUS correctly identified customized wedding cakes as a mode of expression that is protected by the First Ammendment.


I am glad my brother has his own business and can choose the customers he wants to work with. He is a painting and decorating guy that works by himself and he wouldn't want to have it any other way. He chooses not to work in certain sections of Reading and he doesn't have to explain why to anyone. The ACLU will never be able to bother my brother and who and where he chooses to work. He and millions of small businessmen will always have this right and the ACLU will not be able to touch them. May Jesus have mercy on all of us.


Can we all say Slippery Slope?


I think the title to this article may be a bit premature. I am not taking sides one way or the other here, but in reading the opinion, I do not think any war was won by either side in this particular opinion. You are correct in that the opinion affirmed the dignity of gay persons, and the fact that that objections to serving them would have to be met with caution, lest it open the door to many other objections by purveyors of goods. But the Court also recognized the importance of the baker's religious freedom, and was quite stern with the Colorado Civil Rights commission for being openly hostile to the claim. The baker won this battle and it honestly was not close - 3 of the 5 justices from Obergefell joined in the opinion. This is not to say cases like Ingersoll v. Arlene’s Flowers will not ultimately be decided differently, but the war is still very much continuing, and the opinion in this matter was by no means a guarantee that the Court would not rule in favor of those who object. I do look forward to seeing how the Court treats the broader constitutional issues, as it certainly will likely have to in the near future.


As a follow up to my earlier comment, I think the war just got a lot harder for you guys at the ACLU. Told you it was premature!

J Woodson

The opinion also pointed out that no one would ever expect a member of the clergy who opposed same-sex marriage for religious reasons to be forced to officiate a wedding for a gay couple. The question is, is a custom decorated cake an artistic endorsement of the marriage that is taking place? Even if the cake is paid for, it could represent symbolic speech. Attendance alone at a wedding is, to an extent, an endorsement of that marriage. The decision was narrow only because the justices need more information before drawing a line. Clergy aren't required to symbolically endorse gay marriage on religious grounds. The guy selling forks at the Walmart cannot refuse to sell forks on religious grounds. Cake decorators? Apparently they're more like a clergy member. What of a florist or venue owner? Stay tuned. Those cases are coming.


If the cake is an endorsement of the marriage, then the cake should be an endorsement of gay marriage, no matter who it is sold to, or who orders it. What Mr. Phillips is actually arguing is that any wedding cake sold to a gay couple is an endorsement of gay marriage, no matter how it is decorated. So, he makes two cakes, decorates them exactly the same, sitting next to eachother on the shelf, you cannot tell them apart. What you're arguing is that one of those two cakes is an endorsement of gay marriage, because he made it for a gay couple. Tell me, is that the left cake, or the right cake?


Here is what the "offending" Commissioner said, as quoted in the Court's opinion, itself:

“I would also like to reiterate what we said in the hearing or the last meeting. 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.”

I guess saying that it is despicable to use religion to hurt or discriminate against others is not right? Well, then, what is it? A good thing?


The commissioner being quoted clearly does not believe in the First Ammendment. The freedom to not produce a specific form of speech (i.e. endorsement of gay marriage) in a mode of expression, which is what the SCOTUS determined a customized wedding cake to be, is covered by this ammendment.


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