The Supreme Court’s Masterpiece Cakeshop decision — a narrow punt at best — prompted the justices to debate at length to what extent a cake constitutes protected expression under the First Amendment. They did not definitively answer the question, but their discussion reveals the extent to which the conservative justices are eager to allow discrimination against same-sex couples to persist.
While some conservatives are already crowing that this was a 7-2 decision, the discussions within the opinions reveal that the justices actually fell in line politically on the actual question of whether to allow for anti-gay discrimination. With a near-identical case in the queue — Arlene’s Flowers — these considerations foretell how the Supreme Court might rule as soon as next year. The indication is actually promising that the Court will not dismantle LGBTQ nondiscrimination protections.
Monday’s decision in favor of Jack Phillips, the baker who refused to sell a wedding cake to a same-sex couple, was decided on a technicality. The justices determined that members of the Colorado Civil Rights Commission were unfairly unbiased against Phillips based on comments they made rebuking his attempts to defend his discrimination using his religious beliefs. The decision strongly implies that had the Court not doubted the impartiality of the Commission’s decision, it would have ruled against Phillips. Only the most conservative justices seemed ready to rule in his favor without relying on the technicality.
To make this case in favor of discrimination, the conservative justices insist that cakes are art, and thus Phillips was fully justified to refuse to create a cake for a same-sex wedding without it being discrimination against a same-sex couple. But doing so required them to distort the facts of the case — distortions that all the liberal justices called out, whether they agreed with the majority or dissented.
These distortions rely on separate complaints the Commission heard when an individual named William Jack sought cakes with explicitly anti-gay messages from other Colorado bakeries and then claimed he was discriminated against when they refused. The Commission ruled in favor of those bakeries, concluding that refusing to write specific offensive text on cake was protected expression — not discrimination on the basis of Jack’s religion. It ruled against Phillips because he refused to sell a wedding cake of any design to a same-sex couple, which made it discrimination, not expression.
Gorsuch (and Alito)
Justice Neil Gorsuch, fulfilling expectations to be as anti-gay as his predecessor, argues in his concurring opinion (joined by Justice Samuel Alito) that there is no distinction to be made between Jack’s complaints and Phillips’ refusal. Key to understanding how he arrives at this conclusion is recognizing that he views a “same-sex wedding cake” as a different product, even when it’s identical to a wedding cake Phillips might sell to a different-sex couple:
…Nor can anyone reasonably doubt that a wedding cake without words conveys a message. Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding.
Gorsuch thereby rejects the premise that Phillips was discriminating on the basis of sexual orientation and conflates the two kinds of refusals:
So, for example, the bakers in the first case [William Jack] would have refused to sell a cake denigrating same-sex marriage to an atheist customer, just as the baker in the second case [Jack Phillips] would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer. And the bakers in the first case were generally happy to sell to persons of faith, just as the baker in the second case was generally happy to sell to gay persons. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers.
In a footnote in her own concurring opinion, Justice Elena Kagan (joined by Justice Stephen Breyer) excoriates Gorsuch for this analysis. She notes that his conclusion rests on the conclusion that the product was not a “wedding cake” but a special “cake celebrating same-sex marriage” that Phillips won’t sell to anyone. “But that is wrong,” she writes.
The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake — one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike. And contrary to Justice Gorsuch’s view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with “religious significance”…
…A vendor can choose the products he sells, but not the customers he serves — no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis—which has nothing to do with Phillips’ religious beliefs — Colorado could have distinguished Phillips from the bakers in the Jack cases, who did not engage in any prohibited discrimination.
In her dissent, Justice Ruth Bader Ginsberg (joined by Justice Sonia Sotomayor) also easily dismantles Gorsuch’s conflation between the Jack cases and Phillips’ case. There is a stark difference, she notes, in the role the customer’s identities played in each scenario:
Change [Charlie] Craig and [David] Mullins’ sexual orientation (or sex), and Phillips would have provided the cake. Change Jack’s religion, and the bakers would have been no more willing to comply with his request… Phillips did, therefore, discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief; and the Commission properly found discrimination in one case but not the other.
Ginsberg also rejects Gorsuch’s assertion that the cakes in both cases were expressive and that the only difference was whether that expression took the form of text. Just as Kagan pointed out that a wedding cake isn’t a different product based on who it’s for, Ginsberg highlights the significance that Craig and Mullins never had the opportunity to even discuss a design before Phillips refused to serve them:
…[W]hile Jack requested cakes with particular text inscribed, Craig and Mullins were refused the sale of any wedding cake at all. They were turned away before any specific cake design could be discussed… The distinction is not between a cake with text and one without; it is between a cake with a particular design and one whose form was never even discussed.
Thomas (and Gorsuch)
Justice Thomas issued his own concurring opinion that was even more candid than Gorsuch’s in terms of justifying discrimination against same-sex couples. But Gorsuch also joined it in part.
Thomas is adamant that Phillips’ refusal was for a “custom” wedding cake as opposed to “any” wedding cake. Though the case record is clear that it was the latter, Thomas concludes it’s the former, based entirely on the Colorado Court of Appeals’ description of Phillips refusing to “design and create a cake to celebrate [a] same-sex wedding.” The conclusion that he was not expressing a message, therefore, “flouts bedrock principles of our free-speech jurisprudence.”
But in attempting to describe how “expressive” these wedding cakes are, however, Thomas inadvertently highlights just how tied they are to the identity of the couple. Phillips meets with the couple, Thomas notes, to discuss “their preferences, their personalities, and the details of their wedding to ensure that each cake reflects the couple who ordered it.” But like Gorsuch, Thomas asserts that it’s reasonable to distinguish such a couple’s wedding based on their sexual orientation:
Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated — the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],” “affir[m] . . . a belief with which [he] disagrees,” id., at 573.
In other words, even though the Supreme Court’s ruling in Obergefell concluded that same-sex couples’ marriages must be treated under the law and Colorado’s law protects against discrimination on the basis of sexual orientation, it’s still not fair to require Phillips to recognize that a “wedding” is a wedding.
Thomas also believes that because Phillips was willing to sell other products to gay people that his discrimination was not stigmatizing. He even went as far as to say that it is “hard to see how Phillips’ statement is worse than the racist, demeaning, and even threatening speech toward blacks that this Court has tolerated in previous decisions.” None of the cases he lists as comparisons, however, had anything to do with a refusal of service.
“It seems that religious liberty has lived to fight another day,” he writes. “If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.”
The outlook for Barronelle Stutzman
With Masterpiece Cakeshop decided in such a narrow way, the Court will likely now turn to Arlene’s Flowers. In that nearly identical case, Washington florist Barronelle Stutzman refused to provide flower arrangements for a same-sex couple’s wedding. The Washington Supreme Court unanimously ruled against her, and she appealed to the U.S. Supreme Court. Stutzman, like Phillips, is represented by the Alliance Defending Freedom (ADF), an anti-LGBTQ hate group.
ADF will likely now look for any evidence available to show that Stutzman was subjected to religious bias in the rulings against her, in hopes of achieving a ruling consistent with Masterpiece Cakeshop, but the record is lacking. Thus, a ruling in Arlene’s Flowers will serve as a test for what Masterpiece Cakeshop would have looked like without doubt about possible religious bias dividing the court. And it doesn’t look good for Stutzman or ADF.
As the opinions actually show, the four liberal justices were actually unified in rejecting the justifications for discrimination. They were merely divided on the question of whether the Commission may have expressed religious bias.
Writing for the majority, Justice Kennedy was also forthright that religious objections do not excuse discrimination in the marketplace, that state law is perfectly entitled to protect “sexual orientation” alongside other protected classes, and even that business owners may not put up signs saying “no goods or services will be sold if they will be used for gay marriages.” By all accounts, Kennedy’s vote is one that upholds discrimination protections for LGBTQ people. And Chief Justice Roberts joined the majority opinion — joining none of the concurrences and issuing no separate opinion of his own.
Thus, there’s every reason to believe that if the Court takes up Stutzman’s case, she’ll lose 6-3. If that happens, Justices Gorsuch, Thomas, and Alito will surely explain at length how flowers for a same-sex wedding are somehow different from flowers for a different-sex wedding. But it won’t matter, because the Court will have recognized that religious beliefs do not justify discrimination on the basis of sexual orientation.
It’s also possible that the Court simply declines to hear Stutzman’s case and lets the ruling against her stand. It did the same thing four years ago when it refused to hear an appeal from a New Mexico photographer who’d lost her similar fight to discriminate against a same-sex couple. Either outcome would equally show that Masterpiece Cakeshop was just a fluke.