Living to fight another day

After six years of litigation, the U.S. Supreme Court ruled 7-2 in favor of Christian cake baker Jack Phillips in the case Masterpiece Cakeshop v. Colorado Civil Rights Commission. This case was one of the most-watched of the term, and was the first big showdown between gay rights and religious freedom since the court forced states to legalize same-sex marriage in 2015.

A broad majority of the court said the Colorado Civil Rights Commission had trampled on Phillips’ religious beliefs, and tossed out the lower court rulings against him. The court contrasted the commission’s hostile treatment of Phillips with its friendly treatment of bakers who refused to bake cakes with critical comments about gay marriage.

“Jack is very relieved,” said Kristen Waggoner, the Alliance Defending Freedom lawyer who argued the case before the high court. “It’s been a long six year battle, where his family business, his income has been hanging in the balance.”

The court avoided ruling on the wider national conflict between business owners’ religious beliefs and gay rights, but said the Colorado civil rights commission clearly violated its constitutional obligation to “religious neutrality.”

“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” Justice Anthony Kennedy wrote, teeing up the complex legal conflict. “At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

Kennedy wrote the opinion that Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, Samuel Alito, Elena Kagan, and Neil Gorsuch joined. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

Kennedy wrote about the Colorado commission’s “clear and impermissible hostility toward the sincere religious beliefs that motivated [Phillips’] objection,” quoting some of the comments from commissioners.

“To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his 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,” said Kennedy.

Though the ruling was a vigorous defense of religious liberty, it had a little something for everyone. Gay rights groups, who anticipated a loss in this case, saw the narrow ruling as an open door for winning on the issue in future cases. The court was noncommittal on the broader issue of religious vendors, citing the variety of circumstances for each case.

If religious objections from vendors have no limits, “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,” Kennedy wrote.

Punting, the court wrote, “[W]hatever the outcome of some future controversy involving facts similar to these, the commission’s actions here violated the Free Exercise Clause.”

A host of similar cases—especially from those in the wedding industry—awaits the court. Arlene’s Flowers v. Washington, which concerns Christian florist Barronelle Stutzman, is awaiting action by the Supreme Court. Waggoner said the court might send that case back to the Washington Supreme Court. Like Phillips’ case in Colorado, she said, “There is hostility that’s present in the record” for Stutzman’s case, citing the state of Washington going after her personal assets.

“[I]t seems that religious liberty has lived to fight another day,” concluded Justice Clarence Thomas, writing a separate concurrence that Gorsuch joined.

Thomas had a strategy for preserving religious liberty in future days, saying that arguments will rely on freedom of expression. In this case the court ruled that the Colorado commission had violated Phillips’ religious exercise, and didn’t get to the question of whether Phillips’ actions were a form of expression.

Thomas and Gorsuch argued that Phillips’ conduct was clearly a form of speech, which the Constitution protects no matter how offensive it is. Thomas said in the new world post-Obergefell, the decision legalizing gay marriage, “the freedom of speech could be essential” to protecting religious objectors.

The newest member of the court, Gorsuch wrote his own striking concurrence. Before his confirmation last year, Gorsuch’s position on gay rights and religious freedom in a business context wasn’t clear. He had a former gay clerk and a gay friend who defended his position on gay rights during the confirmation process, but he also as a circuit judge ruled in favor of Hobby Lobby in its religious freedom case.

Today his position became crystal clear, with Gorsuch writing a separate concurrence strongly in favor of the baker. Gorsuch’s concurrence argued with Kennedy’s comment that a “special cake” with words or images might be different from a generic wedding cake. Another concurrence from Breyer and Kagan took a stronger line on that, saying that Phillips’ religious exercise wasn’t protected for a generic wedding cake. (Without words the cake is “simply a wedding cake,” they wrote.)

Gorsuch pounced: “It is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding cake is just like any other—without regard to the religious significance his faith may attach to it—than it would be for the Court to suggest that for all persons sacramental bread is just bread or a kippah is just a cap.”