Colorado Court Rules Against Anti-Gay Baker, Finds Refusing To Bake A Cake Is Discrimination

Jack Phillips decorating a cake with the word, “Love.” CREDIT: AP PHOTO/BRENNAN LINSLEY
Jack Phillips decorating a cake with the word, “Love.” CREDIT: AP PHOTO/BRENNAN LINSLEY

The Colorado Court of Appeals has ruled 3–0 against Jack Phillips, owner of Masterpiece Cakeshop, for refusing to sell a wedding cake to a same-sex couple. The ruling affirms a 2013 decision from an Administrative Law Judge (ALJ) against the baker.

Many of the Court’s arguments mirror what ALJ Robert Spencer originally wrote. For example, the panel rejected Phillips’ argument that refusing to sell a wedding cake was not discrimination, but a religious refusal to participate in a wedding ceremony. “The United States Supreme Court has recognized that such distinctions are generally inappropriate,” the Court writes, noting that a distinction between sexual orientation and conduct specific to a particular orientation cannot be drawn.

But the panel went further, noting that the recent Supreme Court marriage equality decision lends further credence to the argument that refusing to recognize a same-sex marriage is discrimination. “In Obergefell v. Hodges, the Supreme Court equated laws precluding same-sex marriage to discrimination on the basis of sexual orientation.”

“In these decisions, the Supreme Court recognized that, in some cases, conduct cannot be divorced from status. This is so when the conduct is so closely correlated with the status that it is engaged in exclusively or predominantly by persons who have that particular status. We conclude that the act of same-sex marriage constitutes such conduct because it is ‘engaged in exclusively or predominantly’ by gays, lesbians, and bisexuals. Masterpiece’s distinction, therefore, is one without a difference. But for their sexual orientation, Craig and Mullins would not have sought to enter into a same-sex marriage, and but for their intent to do so, Masterpiece would not have denied them its services.”


Since Masterpiece admitted it refused to serve the couple because of their intention to marry, it’s reasonable to infer an intent to discriminate because of their sexual orientation. Citing an example proffered in a similar case — “[a] tax on wearing yarmulkes is a tax on Jews” — the Court found that “discrimination on the basis of one’s opposition to same-sex marriage is discrimination on the basis of sexual orientation.”

The Court was unmoved by Phillips willingness to sell other baked goods to gay people, because it not does change whether or not he violated the Colorado Anti-Discrimination Act (CADA). “Masterpiece’s potential compliance with CADA in this respect does not permit it to refuse services to Craig and Mullins that it otherwise offers to the general public.” Another example offered as a point of comparison was a restaurant that offers the same menu to both men and women, but only lets men order entrees.

Phillips had also claimed that being required to not discriminate implicated his freedoms of speech and religion. This did not convince the panel, who concluded “that the act of designing and selling a wedding cake to all customers free of discrimination does not convey a celebratory message about same-sex weddings likely to be understood by those who view it. We further conclude that, to the extent that the public infers from a Masterpiece wedding cake a message celebrating same-sex marriage, that message is more likely to be attributed to the customer than to Masterpiece.” Whether the particular message of any specific cake design would implicate First Amendment concerns was irrelevant to the court, because Phillips denied them service before any discussion of the design of the cake took place.

Either way, just because Phillips produces a wedding cake for a same-sex couple, that doesn’t mean he endorses same-sex marriage. “A reasonable observer would understand that Masterpiece’s compliance with the law is not a reflection of its own beliefs.” Indeed, he could even post a disclaimer indicating that he does not approve of conduct protected by CADA, or “otherwise disseminate a message indicating that CADA requires it not to discriminate on the basis of sexual orientation and other protected characteristics.” This would disassociate his shop from his customers’ conduct.

As for Phillips’ religious beliefs, the Court found that they were not implicated because CADA is “generally applicable” because “it does not regulate only religiously motivated conduct.” Likewise, “it does not exempt secular conduct from its reach.” It does have exemptions for religious purposes, but “Masterpiece does not contend that its bakery is primarily used for religious purposes.” In fact, the Court pointed out that the fact that the exemption exists for religious entities “undermines Masterpiece’s contention that the law discriminates against its conduct because of its religious character.”


“Masterpiece remains free to continue espousing its religious beliefs, including its opposition to same-sex marriage,” the Court explains. “However, if it wishes to operate as a public accommodation and conduct business within the State of Colorado, CADA prohibits it from picking and choosing customers based on their sexual orientation.”

The decision notes that if CADA were not law and discrimination on the basis of sexual orientation were legal — as it is in many states — the discrimination would have “measurable adverse economic effects.” CADA “prevents the economic and social balkanization prevalent when businesses decide to serve only their own ‘kind,’ and ensures that the goods and services provided by public accommodations are available to all of the state’s citizens.”

The panel’s conclusion was unequivocal: “Masterpiece violated Colorado’s public accommodations law by refusing to create a wedding cake for Craig’s and Mullins’ same-sex wedding celebration.”

Phillips’ is the latest in a fairly consistent line of losses for conservatives arguing that religious liberty should justify anti-LGBT discrimination. These previous rulings, such as against Elane Photography in New Mexico or Sweet Cakes by Melissa in Oregon, actually further informed the Colorado Court’s reasoning.

The Alliance Defending Freedom, a conservative legal organization that has defended many of these wedding vendors, did not immediately state its next steps in Phillips’ case. According to Senior Legal Counsel Jeremy Tedesco, “Jack simply exercised the long-cherished American freedom to decline to use his artistic talents to promote a message with which he disagrees. The court is wrong to deny Jack his fundamental freedoms. We will discuss further legal options.”