In a 7-2 decision written by Justice Anthony Kennedy, the Supreme Court said the Colorado Civil Rights Commission violated the free exercise clause of the Constitution when it ordered Jack Phillips to make a custom cake for a same-sex wedding he morally opposed under the state’s public accommodations law in a narrow ruling on Monday.
“The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression,” the majority opinion said.
“While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other member of the public, the law must be applied in a manner that is neutral toward religion.”
The Hill notes:
In basing the decision on the state commission’s treatment of Phillips, the court’s decision did not provide the sweeping victory for religious rights that some of those backing Phillips might have hoped to see. Phillips had originally asked the court to rule that wedding cakes are an artistic expression of speech and religion protected by the First Amendment, but the court did not go that far.
Kennedy specifically said Colorado was well within its power to enact a anti-discrimination law when the legislature believes a given group is the target of discrimination. Kennedy wrote that the commission showed a clear and impermissible hostility toward the sincere religious beliefs motivating Phillips’s objections to making the custom cake.
Kennedy said comments during public hearings before the commission in the case disparaged Phillips’s faith as despicable and compared his sincerely held religious beliefs to defenses of slavery and the Holocaust.
“This sentiment is inappropriate for a commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation,” Kennedy said.
“If a member of the clergy were to refuse to perform a same-sex marriage,” Kennedy wrote, that would be well understood to be a protected exercise of religion “that a gay person could recognize and accept without diminishment to their own dignity and worth.”
But, he added, “if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting 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.”
Liberal Justice Ruth Bader Ginsburg wrote a dissenting opinion, which fellow liberal Justice Sonia Sotomayor joined, arguing that the comments of one or two members of Colorado’s Civil Rights Commission does not justify reversing a lower court’s decision siding with the couple, Charlie Craig and David Mullins.
“Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins,” she wrote.
In a concurring opinion, conservative Justice Clarence Thomas argued that a wedding cake is an expressive form of speech that should be protected under the First Amendment and that the Colorado Court of Appeals was wrong to conclude otherwise.
The American Civil Liberties Union, which argued the case on behalf of the couple, said in a statement that the court would have turned the clock back on equality by making basic civil rights protections unenforceable if it had accepted Phillip’s First Amendment argument.
“The court reversed the Masterpiece Cakeshop decision based on concerns unique to the case but reaffirmed its longstanding rule that states can prevent the harms of discrimination in the marketplace, including against LGBT people,” said ACLU deputy legal director, Louise Melling.
House Minority Leader Nancy Pelosi (D-Calf.) said she would seek legislation to protect gay rights in response to the decision.
“The Masterpiece Cakeshop case is about the most fundamental right of all Americans: to be free from persecution and discrimination because of who they are or whom they love. While narrowly framed to apply to the decision-making process undertaken by the state commission, today’s wrongheaded decision fails to uphold equality in this case,” she wrote in a statement.
“We have always believed that in America, you should not be turned away from a business open to the public because of who you are,” said Craig and Mullins. “We brought this case because no one should have to face the shame, embarrassment, and humiliation of being told ‘we don’t serve your kind here’ that we faced, and we will continue fighting until no one does.”