On June 4, the U.S. Supreme Court overturned a decision by the Colorado Civil Rights Commission (upheld by Colorado courts) that had found baker Jack Phillips of Masterpiece Cakeshop guilty of unlawful discrimination for declining to make a wedding cake for a same-sex couple. The vote was 7-2—that is, seven justices voted to overturn the Colorado decision, while only two voted to uphold it.
The New York Times’ online story about the ruling carried the headline, “In Narrow Decision, Supreme Court Sides With Baker Who Turned Away Gay Couple.” The Washington Post editorialized, “The Supreme Court’s narrow ruling on a wedding cake is a step in the right direction.”
Subsequently, I noticed some people on social media (especially conservative friends) grousing about the description of the 7-2 decision as “narrow,” as though the liberal media was trying to downplay Jack Phillips’ decisive victory. So I thought I would offer a short explanation.
Masterpiece Cakeshop is being described as a “narrow” ruling not because of its margin, but because of its reasoning. Neither side in the case got everything that it wanted.
Those supporting Colorado, and supporting Charlie Craig and Dave Mullins (the same-sex couple who had requested a cake from Phillips), wanted a broad ruling that 1) Phillips violated Colorado’s Anti-Discrimination Act by discriminating against the couple on the basis of “sexual orientation; and 2) that no claim of religious freedom or free speech can excuse that statutory violation by a business that qualifies as a “public accommodation.” In the end, only two justices (Ruth Bader Ginsburg, with Sonia Sotomayor joining her in dissent) adopted that view and considered it decisive.
Those supporting the baker Phillips, on the other hand, wanted a broad ruling that his rights to freedom of speech and the free exercise of religion, because they are fundamental rights under the U.S. Constitution, must take precedence over the statutory provisions of Colorado law. Yet the Court’s ruling in favor of the free exercise claim was a narrow one, and only two justices expressed support for the free speech claim as well (Clarence Thomas, with Neil Gorsuch joining his concurrence in the judgment).
(I should note as well that some key elements of the case remained in dispute. Phillips’ attorneys questioned whether the Anti-Discrimination Act even applied, arguing that Phillips did not, in fact, “discriminate” on the basis of “sexual orientation” at all, because he was happy to serve self-identified gay customers with products other than a wedding cake. Colorado’s attorneys questioned whether the First Amendment even applied, arguing that baking a cake cannot be considered a form of “speech” at all.)
Instead of clearly explaining that Jack Phillips’ has robust constitutional rights regarding the cakes he designs, the majority opinion found that the Colorado Civil Rights Commission simply didn’t behave well enough in this case, due to: (1) the hostility aimed specifically at his religious beliefs (evidenced in comments of the Commission), and (2) the different treatment the Commission gave a parallel case (one in which the Commission allowed bakeries to refuse to make cakes criticizing same-sex marriage). It was only because the Commission exhibited anti-religious bias in its proceedings against Jack Phillips that the Supreme Court threw out its ruling, on free exercise grounds. Justice Gorsuch also wrote a strong concurrence, joined by Justice Alito, elaborating on the strength of the free exercise claim here.
Although they joined the majority opinion, Justices Kagan and Breyer additionally wrote a concurrence explaining that their lukewarm support for Phillips was only based on the fact that he was treated really badly by members of the Commission in this case. They argued that the disparate treatment between the two bakery cases could have been justified, were it not for the overt anti-religious hostility exhibited by the Commission.
Justices Kennedy and Roberts—in writing and joining only the majority opinion, respectively—ruled in favor of Phillips, but not on the basis of a sweeping affirmation of his freedom of speech or of religion.
A definitive Supreme Court precedent, resolving the underlying dispute between “non-discrimination” principles and freedom of speech and religion, will have to await another case and another decision. That is why many are calling Masterpiece a “narrow” decision.