Supreme Court & Baking Cakes

Supreme Court And Baking Cakes: Not About Religious Liberty

By KrisAnne Hall, JD


The supreme Court of the United States rendered its opinion on a highly anticipated case regarding the right of a baker to refuse to design and create a wedding cake for a gay marriage ceremony based upon his religious convictions.  However, for the SCOTUS, this appears not to be a case of religious freedom, but one of unjust government discrimination.

The History

Jack Phillips, a practicing Christian, often refused to design and create baked goods based upon his religious beliefs.  His store was closed on Sundays and other Christian holidays, he refused to create or design desserts for Halloween, and he refused to make desserts that contained alcohol.  Mr. Phillips did not refuse to serve the same-sex couple who later filed a complaint.  He only refused to design and create a cake for their wedding.  He remarked that he would be happy to design and create cookies, birthday cakes, shower cakes, or brownies, just not a wedding cake due to religious objections.  The same-sex couple filed a complaint with the Colorado Civil Rights Commission and the

commission, after several hearings, decided that Mr. Phillips violated Colorado’s public accommodation laws by refusing to create and design this wedding cake for the same-sex couple.  The Colorado commission did not accept Mr. Phillip’s defense of religious conviction.  Members of the commission, on record and as justification for their decision, mocked Mr. Phillip’s beliefs and compared his religious convictions to slavery and to the Holocaust.  The supreme Court found in favor of Mr. Phillips in a 7-2 opinion, based particularly on the statements of the Colorado commissioners.

There are some very significant points that must be made to clarify this carefully written opinion.  Because of the great public anticipation over this case, there will be a tendency to make more of what was said than was actually said and mischaracterize the magnitude of this decision.

  1. Not a Matter of Freedom of Religion

The court did not render its opinion on the basis of religious freedom.  They did not declare that private business owners are free to discriminate based upon religious beliefs.  As a matter of fact, they said the opposite.

“It is the general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny 

protected persons equal access to goods and public services under a neutral and generally applicable public accommodations law.” (Page 9)

“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.” (Page 10)

Mr. Phillips made multiple statements asserting his refusal to make the cake was based upon religious conviction.  However, it seems the Court only references these objections for the purpose of condemning the Colorado commissioners’ apparent discriminatory statements voiced against Mr. Phillips.  This Court never asserted that Mr. Phillips was justified in his refusal based upon his right to religious freedom.  It is not clear that this is an overall victory for private business owners or Christians to publicly maintain their convictions.

  1. Clergy Cannot be Compelled

The court took time to clarify that it should be “assumed” that “when it comes to weddings”, “a member of the clergy who objects to gay marriage on moral 

and religious grounds could not be compelled to perform that ceremony without denial of his or her right to the free exercise of religion.”  (Page 10)  It seems interesting that the Court feels that it should be obvious and therefore not questioned that a professional clergy maintains full right to expression of their freedom of religion but a baker does not.  It would seem that the court sees the possession and expression of fundamental rights like freedom of religion as inherent in a profession rather inherent to all persons.

  1. It’s Not Freedom of Religion, It’s Freedom from Discrimination

This Court did not declare that Mr. Phillips’ personal religious objections justified his refusal to bake this cake.  Instead they took a safer and more politically correct approach by finding that the Colorado commissioners’ statements applied the Colorado public accommodation law in a discriminating and biased manner.  The Court says “the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws.” (Page 3) However, the government cannot use Mr. Phillips’ religious beliefs as the basis for the application of their laws.  Justice Kennedy points out that when commissioners on the Colorado board made statements describing Mr. Phillips’ faith as “one of the most despicable pieces of rhetoric that people can use,” and equating his refusal to design and create a wedding cake for a same-sex marriage to the acts of slavery and the holocaust they began down the path of discriminating against him.  In addition to these condemning statements, the Colorado commission had, at the same time, determined that three other bakers could refuse to bake cakes critical of gay marriage, contrary to their secular convictions, making clear their bias and discriminatory application of this otherwise “neutral” law.  The majority opinion determined that it was this discriminatory act by the Colorado commission that required the court to overturn this case.  Again, for the majority opinion, this appears not to be a case of religious freedom of expression, but one of unjust government discrimination.

  1. Not Legal Yet

The Court, almost in passing, also mentioned that Mr. Phillips’ may have been justified in his refusal to design and create this wedding cake, because Colorado had not legalized gay marriage yet.  His refusal, at that time, was not only in compliance with State law, but also a refusal to participate in an illegal activity.  Perhaps Kennedy added this point of fact as a way of publicly saying to business owners in States who have legalized gay marriage, you have no argument to withhold your services if State law compels service.

  1. What About Freedom of Speech?

There is one aspect of personal rights the majority opinion mentions but strangely never fleshes out; the matter of freedom of speech.  The majority court introduces the question; Is the government’s law forcing Mr. Phillips to design and create a cake contrary to his personal message, a violation of freedom of speech?  But then, in what seems to be a lapse of concentration, the majority opinion never answers this question definitively.  It isn’t until we get to Justice Thomas’ concurrence that we find a truly worthy discussion of this important element.  Thomas’ opinion on the matter of freedom of speech is so thorough and so supported by precedent it makes one wonder why the majority court refused to give this topic its due consideration.  Justice

Thomas points out that it is well within the history of the supreme Court to support the expression of offensive beliefs in the name of freedom of speech.  After all, he reminds us, if the burning of a flag or a 25 foot cross (Virginia v. Black), or designing and creating “a film featuring Klan members brandishing weapons and threatening to ‘Bury the niggers,’ (Brandenburg v. Ohio) are all protected speech, then surely designing and creating a cake ought to fit these categories as well.

By the terms laid out by Justice Thomas, this case should have absolutely been decided in favor of Mr. Phillips on the merits of freedom of speech.  Why the majority court would introduce this element, and then not complete its thought on the matter is puzzling.  Why the majority court would choose a single justification for their opinion when they could have had two compelling arguments is equally puzzling.

  1. The Dissent

One final matter worth discussing is the dissent written by Justice Ginsburg, joined by Justice Sotomayor. Not surprisingly, Ginsburg feels that this case should have been decided in favor of the same-sex couple.  However, her argument against the majority opinion is so weak it makes clear her bias.  She does not address the fact that gay marriage was illegal at the time Mr. Phillips refused to design and created the cake.  She does not even broach the freedom of speech aspect.   Instead she asserts that the biased statements of a few commissioners against Mr. Phillips, during a government hearing in judgment of Mr. Phillips, do not rise to the level of “hostility” toward Mr. Phillips and therefore cannot be the justification for overturning this case.  Apparently, Ginsburg believes in a lower standard of discrimination for government than private citizens by claiming that these clear and impermissible words of hostility placed on the record by members of the commission and used as justification for their decision were not an exercise of content discrimination, yet the baker refusing to make a wedding cake for a gay marriage, that was currently against the law, and violated his religious beliefs was discrimination.