On Monday, the U.S. Supreme Court decided the long-awaited “Colorado Cake Case,” Masterpiece Cake Shop, Ltd. v. Colorado Human Rights Commission. The case arose when Jack Phillips, the owner of Masterpiece, refused to create a cake for a same-sex couple’s wedding. Both sides claimed constitutional protections: the vendors under the First Amendment and the couple under Obergefell v, Hodges, the landmark 2015 Supreme Court decision enshrining same-sex marriage as a right under the 14th Amendment. After the argument, many observers predicted that, by a 5-4 vote, the Court would grant companies a “religious exemption” to the Civil Rights laws.
The bakers won. However, the vote totalled 7-2. Justice Kennedy wrote the majority opinion. Liberal Justices Stephen Breyer and Elena Kagan wrote a concurring opinion. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. How did that happen?
These three opinions show that the bakers got a reprieve for a very specific reason, not a resounding endorsement of their legal arguments.
At the start of the litigation, the bakers said, forthrightly, that their Christian faith forbade them from engaging in same-sex marriage. They said that baking a plain cake for such nuptials amounted to their “participation” in the wedding, an act equally sinful. A similar claim carried the day in the Hobby Lobby case, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 22 (2014). There, the Court struck down the Affordable Care Act’s contraception mandate for privately held businesses whose owners harbored religious objections to birth control. Someone must have discovered that the Supreme Court had unanimously rejected free exercise of religion as an excuse for a barbecue joint opposing integration in Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400 (1968). So the bakery tried something else.
Over the past decade, the Supreme Court has turned the free expression guarantee of the First Amendment into something of a club against government regulations. Prominently, Citizens United held campaign finance restrictions unconstitutional. Here, the bakers turned themselves into confectionary “artists,” whom the government could not compel to create edible sculpture.
Neither argument prevailed. Justice Kennedy rejected the artistic comparison outright. He wrote, “few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech.” Aside from this fleeting reference, Justice Kennedy and other justices ignored the matter, focusing on freedom of religion, instead.
Even then, Justice Kennedy hinted — and Justices Kagan and Breyer and Ginsburg and Sotomayor stated explicitly — that the bakers went too far. Justice Kennedy acknowledged, correctly, that no one can compel clergy to perform a same-sex wedding; the government may not dictate religious doctrine. Commercial actors, however, present another issue. Justice Kennedy reiterated, “The Court’s precedents make clear that 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.”
He cautioned that “[I]t is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Finally, he added, “Yet 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.”
These sentiments would make it a 5-4 vote in favor of the couple and against the bakers, as the State of Colorado had ruled. However, Justices Kennedy and Kagan noted a problem with this particular case. As Justice Kagan characterized it in her concurrence, the “reasoning” behind the holding changed things. The “reasoning” consisted of comments commissioners made at a hearing, which the justices found “violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” It was said, basically, that religion caused much evil in the world, although it should be noted that their written opinions, with their legal rationales, said no such thing. As the syllabus of the ruling noted:
“As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.”
The commissioner’s remarks gave Justice Kennedy a way out. As the architect of the right to same-sex marriage and a champion of a large role for religion in public life, he could avoid elevating one over the other here.
Next time, or even when this case goes back to Colorado, decision makers who understand the implications of this ruling will likely keep such opinions to themselves. As long as Justice Kennedy remains on the bench, civil libertarians can exhale.
Joshua Z. Rokach, a graduate of Yale Law School and a retired lawyer, lives in Silver Spring, Maryland.