U.S. Supreme Court Sides with Wedding Cake Baker in Gay Rights Case Based on Civil Rights Commission's Impermissible "Hostility"

Date   Jun 12, 2018

Executive Summary: On June 4, 2018, the United States Supreme Court, in a 7-2 ruling, found in favor of Jack Phillips, owner of Masterpiece Cakes, who refused to make a wedding cake for a same-sex couple. He cited religious beliefs condemning gay marriage as his reasoning. The LGBTQ community had hoped this long-awaited decision would expand their rights. However, the Supreme Court reversed the holdings of the lower courts finding the Colorado Civil Rights Commission showed impermissible “hostility” towards Phillips, violating his rights under the Free Exercise Clause of the First Amendment.

Background and Decision:

The case originated in the summer of 2012 when Phillips refused services to Charlie Craig and Dave Mullins, a same-sex couple who wanted to hire him to create their wedding cake. Phillips stated that, while he would sell them any other products, “to create a wedding cake for an event that celebrates something that directly goes against the teachings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.” In other words, Phillips objected to making a wedding cake because his religious teachings do not condone such marriages. In 2012, same-sex marriage was not recognized in Colorado, and Obergefell v. Hodges, which recognized such marriages on a national level, was not decided by the U.S. Supreme Court until 2015.

The couple filed a claim with the Colorado Civil Rights Commission in August 2012 alleging they were denied services by Phillips – a public accommodation – because of their sexuality. Phillips defended the claims with two First Amendment arguments: (1) that his cakes were a form of artistic expression that were protected by the free speech clause; and (2) that requiring him to create a cake for a same-sex wedding violated his right to the free exercise of religion. The Commission ruled in favor of Craig and Mullins, as did the Colorado courts. They held that by refusing to make the couple a wedding cake, Phillips had illegally discriminated against them in a public accommodation because of their sexual orientation. The Commission and courts rejected Phillips’ arguments that requiring him to bake the couple’s wedding cake would impermissibly infringe on his own religious beliefs and that the Commission’s proceedings had shown open hostility towards his religion, thus violating his First Amendment protections. Phillips appealed those rulings to the Supreme Court.

On June 4, 2018, the Supreme Court issued its opinion. Importantly, the Supreme Court did not review the larger question before it – the interplay between the right to be free from discrimination based on one’s sexuality and the right to freedom of religion under the First Amendment. Rather, the Supreme Court based its ruling on how the Commission treated Phillips and his religious beliefs during the public hearings, stating that when before the Commission, Phillips “was entitled” to “neutral and respectful consideration.” Justice Anthony Kennedy, who penned the majority opinion, wrote that the Commission, instead, displayed “clear and impermissible hostility toward the sincere religious beliefs that motivated his objection” to baking a cake for Craig and Mullins.

Justice Kennedy raised several examples of this hostility. First, he noted that officers at the public hearings described Phillips’s faith as “one of the most despicable pieces of rhetoric that people can use to…use their religion to hurt others,” and compared his reliance on his faith to those defenses used to justify slavery and the Holocaust. Justice Kennedy admonished the Commission by writing that “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.”

Second, the Court compared Phillips’ conduct to that of three other bakers who refused to bake cakes for a person requesting anti-same sex marriage and religious messages. In those cases, the Commission ruled in favor of the bakers, finding that (a) that the images sought to be portrayed were derogatory, hateful and/or discriminatory, and (b) that the bakers were willing to sell the person any other product. In contrast, Craig and Mullins had not requested that any specific image be displayed on their proposed cake, and the Commission refused to consider Phillips’s testimony that he, like the other bakers, would have sold any other product to the couple. Moreover, the Court noted that the Commission based its decision, in part, on the theory that any message that the couple did request would be attributable to them, not the baker, something never taken into consideration in the other three cases. The Court concluded that the Commission considered Phillips’s religious-based exceptions differently than the other bakers’ “conscience based objections,” which “violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious point of view.” In other words, a business owner’s potential discrimination against a patron does not justify a governmental agency’s discriminatory conduct towards the business owner.

Bottom Line:

The take-away from this case is best summarized by the Supreme Court itself: “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.” In contrast to LGBTQ advocates’ hopes, this ruling does not help resolve the conflict between the rights of those with sincerely held religious beliefs and the rights of those in the LGBTQ community. However, it does serve to make abundantly clear that employers and businesses – as well as LGBTQ plaintiffs – are entitled to fair and equal proceedings before all governmental agencies.

If you have any questions regarding LGBTQ rights or labor or employment related issues, please feel free to contact the authors of this Alert, Johanna Zelman,, who is a partner in our Hartford office, Nancy Holt,, who is a partner in our Washington, D.C. office and Jenna Goldman,, who is an associate in our Hartford office. You may also contact the FordHarrison attorney with whom you usually work.