This Takes the Cake

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David Mullins and Charlie Craig, the couple who filed a complaint after a Colorado baker refused to sell them a wedding cake, at the Supreme Court, Washington, D.C., December 2017

“It is a general rule that [religious and philosophical] objections do not allow business owners…to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” So wrote Justice Anthony Kennedy for the majority in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which was decided by the Supreme Court on June 4. The case, which I argued in the Court on behalf of Charlie Craig and David Mullins, a gay couple denied a wedding cake by a Denver-area bakery, posed the question of whether the bakery owner had a First Amendment right to refuse to sell the couple a wedding cake because he objected on religious grounds to same-sex marriage.

The answer, at least according to Justice Kennedy’s “general rule,” would seem to be no. Colorado’s public accommodations law, like those of forty-four other states and the federal government, is a “neutral and generally applicable public accommodations law” that forbids discrimination against customers based on race, sex, sexual orientation, and the like. Accordingly the baker’s religious objections do not permit him to deny “equal access to goods and services.”

And yet the Court ruled, by a vote of 7–2, in favor of Masterpiece Cakeshop and its owner/baker, Jack Phillips, with Justices Elena Kagan and Stephen Breyer joining their five conservative colleagues. It did so on the case-specific ground that, regardless of the legality of the baker’s refusal to serve the gay couple, the Colorado Civil Rights Commission that considered their claim of discrimination was infected by antireligious bias, which independently violated the baker’s constitutional right to the free exercise of religion. Because it decided the case on this narrow ground, the Court did not formally rule on the question of whether businesses open to the public could ever rely on the First Amendment to justify discrimination.

The decision has caused confusion among advocates and commentators on all sides. Rachel Tiven, the CEO of the LGBT civil rights organization Lambda Legal, said, “The Court today has offered dangerous encouragement to those who would deny civil rights to LGBT people.” The lawyer for the baker, Kristen Waggoner of Alliance Defending Freedom, an anti-gay advocacy organization, proclaimed that “the court’s decision announced that the government was wrong to punish Phillips for living according to his beliefs about marriage.” And the constitutional law professors Larry Sager and Nelson Tebbe wrote that “in Masterpiece, the Court released a baker from the requirement that he serve all customers, including same sex wedding celebrants.”

All of these pronouncements are wrong. The decision does not encourage discrimination against LGBT people; on the contrary, it strongly reaffirmed the importance of antidiscrimination laws and declined to adopt…



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