June 7, 2018
In the U.S. Supreme Court’s decision in the Masterpiece Cakeshop case, finding by a 7-2 vote in favor of a baker who had declined to create a wedding cake for a same-sex wedding, there were five separate opinions written.
Here, I offer a brief summary (not a detailed legal analysis) of what each of these opinions contained. (For more, see this blog post by FRC’s Travis Weber.) In the five opinions:
- Justice Anthony Kennedy wrote for the Court, joined by Chief Justice John Roberts, Justice Stephen Breyer, Justice Samuel Alito, Justice Elena Kagan, and Justice Neil Gorsuch (six Justices; Justice Clarence Thomas wrote separately “concurring in part and concurring in the judgment,” but did not join the Court’s opinion);
- Justice Kagan wrote a concurrence which Justice Breyer joined;
- Justice Gorsuch wrote a concurrence which Justice Alito joined;
- Justice Thomas wrote an opinion “concurring in part and concurring in the judgment,” with which Justice Gorsuch joined;
- Justice Ruth Bader Ginsburg wrote in dissent, joined by Justice Sonia Sotomayor.
Here’s an overview of each opinion:
Kennedy for the Court (joined by Roberts, Breyer, Alito, Kagan, and Gorsuch):
Justice Kennedy ruled in favor of Masterpiece because “the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.” He found this for two reasons:
- Comments made by members of the Commission in the course of its hearings, especially one notorious quote:
“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.”
Kennedy noted that this statement disparages religion “in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.”
- The difference in treatment between Phillips’ case and the cases of other bakers, who had refused to bake cakes communicating negative religious messages about same-sex marriage, but were found not to have discriminated against the customer (William Jack) on the basis of religion. He notes inconsistency in how the free speech claims were treated, but most notably in how the conscience objections were viewed, with the Commission accepting the secular objection to making anti-SSM cakes “because of the offensive nature of the requested message,” but rejecting Phillips’ religious objection to making a same-sex wedding cake. Kennedy says, “[I]t is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive,” yet the Colorado decision “elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.”
Kagan concurring, with Breyer joining:
This short opinion (a little over three pages) concurs in the judgment—but goes out of its way to say that Colorado could have made a legitimate distinction between the Masterpiece case and the three cases of William Jack (who was refused cakes expressing opposition to same-sex marriage, but was not deemed a victim of discrimination). Kagan says explicitly that Jack Phillips of Masterpiece was guilty of discrimination:
Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis—which has nothing to do with Phillips’ religious beliefs—Colorado could have distinguished Phillips from the bakers in the Jack cases, who did not engage in any prohibited discrimination.
However, she concurs because the State’s decisions must not be “infected by religious hostility or bias”—as in this case.
Gorsuch concurring, with Alito joining:
Gorsuch focused in specifically on the disparate treatment of the Masterpiece case as opposed to the three William Jack cases involving refusal to bake cakes opposing same-sex marriage. In contrast to both the Ginsburg/Sotomayor dissent and the narrow Kagan/Breyer concurrence, Gorsuch argued that there was a very close correspondence between the facts of the cases, saying that “the two cases share all legally salient features”:
- “bakers refused services to persons who bore a statutorily protected trait (religious faith or sexual orientation)”
- “they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else)”
- “the bakers in the first case [William Jack] were generally happy to sell to persons of faith, just as the baker in the second case [Jack Phillips/Masterpiece] was generally happy to sell to gay persons.”
Gorsuch concludes that “the Commission failed to act neutrally by applying a consistent legal rule,” and warns that “the one thing it can’t do is apply a more generous legal test to secular objections than religious ones.” In contrast to the four liberals, Gorsuch states explicitly that “the Commission must afford him [Jack Phillips/Masterpiece] the same result it afforded the bakers in Mr. Jack’s case.”
Thomas, “concurring in part and concurring in the judgment,” Gorsuch joining:
To me, one of the most notable facts of the decision is that at oral arguments, the ADF attorneys representing Masterpiece put their emphasis on arguments resting on First Amendment Free Speech grounds (not Free Exercise of Religion). They emphasized that designing custom wedding cakes is a form of artistic expression and therefore, requiring they be provided for same-sex weddings is an unconstitutional form of “compelled speech” by the government. This, however, turned out not to be the primary issue addressed by the court, which instead decided there was a Free Exercise violation because of the lack of religious neutrality.
Justice Thomas’ opinion was the only one that addressed the Free Speech issues at length. He acknowledges that the issue here is “expressive conduct” rather than pure speech as such, but says under Court precedents, “Once a court concludes that conduct is expressive, the Constitution limits the government’s authority to restrict or compel it.” He says that in this case, “Phillips’ creation of custom wedding cakes is expressive,” and concludes the following:
Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids.
Although declining to decide whether Colorado’s law satisfies “strict scrutiny,” Thomas warns, “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.”
Ginsburg dissenting, Sotomayor joining:
Like the Gorsuch/Alito concurrence, the Ginsburg/Sotomayor dissent focused specifically on the differing results given by the Colorado Civil Rights Commission in the case involving Jack Phillips and Masterpiece Cakeshop (where refusing to provide the cake requested by the customer was found to be illegal discrimination) as opposed to the cases involving customer William Jack (where refusing to provide the cakes requested by the customer was found not to be illegal discrimination). However, Justice Ginsburg reaches the exact opposite conclusion from that of Justice Gorsuch.
Ginsburg and Sotomayor agreed with their liberal colleagues Justices Kagan and Breyer in saying that the cases could be legitimately distinguished, but disagreed with the latter pair’s conclusion that anti-religious bias had impermissibly “infected” Colorado’s adjudication of the cases. Ginsburg writes:
The different outcomes the Court features do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below.
The problem I see with the dissent is this statement (which was repeated, in various ways, several times): “Phillips did . . . discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief.” Ginsburg argues that Phillips’ refusal of a same-sex wedding cake was “determined solely by the identity of the customer” whereas the refusal of William Jack’s request “was due to the demeaning message” he wanted displayed.
Since Phillips regularly serves customers who identify as gay (but would refuse a cake to celebrate a same-sex wedding regardless of who requests it), the first conclusion is questionable. The latter conclusion, however, is nothing short of astonishing. What Ginsburg calls a “demeaning message” may have been crude (including, among other things, “an image of two groomsmen, holding hands, with a red ‘X’ over the image”), but combined with biblical verses and quotations, its essential content was that 1) homosexual conduct is sinful, and 2) God does not approve of same-sex sexual relationships or consider them to be “marriage.” I fail to see how this “message” (however “demeaning” some may find it) can be seen as not representing a “religious belief.”
Note that this is not to say that the solution would be to force bakers to make cakes with messages they consider “demeaning,” as well as forcing them to make cakes for same-sex weddings. Instead, the opposite would be ideal. Baking cakes, whether to celebrate a specific event such as a same-sex wedding or to condemn that concept, is a form of expressive conduct that should not be compelled by the government. Even if Colorado believes that its Anti-Discrimination Act was violated, the provisions of this state statute cannot be allowed to override the bakers’ fundamental right to free speech under the U.S. Constitution.
No baker should be forced to communicate a message with which he or she disagrees. Although Jack Phillips prevailed in the Masterpiece Cakeshop case, the ruling does not clearly apply the Court’s compelled speech precedents to that context. The debate continues.