Supreme Court Issues Opinion in Masterpiece Cakeshop First Amendment Case

This morning, the Supreme Court issued its opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  Based on his religious beliefs, Colorado baker Jack Phillips refused to create a cake for a same-sex wedding in 2012, and the Colorado Civil Rights Commission, a state Administrative Law Judge, and the Colorado Court of Appeals all found that Phillips had violated the Colorado Anti-Discrimination Act.

Today, the Supreme Court, in a majority opinion by Justice Kennedy, held 7-2 that the Colorado Civil Rights Commission acted with "clear and impermissible hostility" toward Phillips' sincerely held religious beliefs (partially from the syllabus; internal citations omitted):

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.  

Another indication of hostility is the different treatment of Phillips’ case and the cases of other bakers with objections to anti-gay messages who prevailed before the Commission. The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips’ willingness to do the same irrelevant. The State Court of Appeals’ brief discussion of this disparity of treatment does not answer Phillips’ concern that the State’s practice was to disfavor the religious basis of his objection. 

For these reasons, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. . . . [T]he record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of his religious beliefs. . . . 

The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated. 

Justice Thomas, joined by Justice Gorsuch, wrote a concurrence because the Colorado Court of Appeals' "reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak."  Justice Gorsuch, joined by Justice Alito, wrote separately to respond to Justices Ginsburg and Kagan's attempts to defend the Commission's actions (internal citations omitted): "In the face of so much evidence suggesting hostility toward Mr. Phillips’s sincerely held religious beliefs, two of our colleagues have written separately to suggest that the Commission acted neutrally toward his faith when it treated him differently from the other bakers—or that it could have easily done so consistent with the First Amendment. But, respectfully, I do not see how we might rescue the Commission from its error."

Whatever one's view of the background social policy debate over same-sex marriage, what happened to Jack Phillips should strike fear into the heart of every liberty-loving person who respects the rule of law.  An unelected government commission pre-judged his case according to the commissioners' own beliefs without regard for his constitutional rights.  (As a side note, this "bipartisan" commission is currently composed of four Democrats, one Republican, and two independents.  Given their outright "hostility" to Mr. Phillips, one can only imagine how fairly they evaluate Republicans that come before them.)  The Supreme Court righted this wrong today.