How three other bakeries — and a Colorado commissioner’s comments — helped decide the Masterpiece case

Colorado’s legal process treated a Christian baker unfairly, according to the U.S. Supreme Court.

(Kevin J. Beaty/Denverite)

staff photo
The Masterpiece Cakeshop in Lakewood is closed as owners testify before the U.S. Supreme Court, Dec. 4, 2017. (Kevin J. Beaty/Denverite)

The Masterpiece Cakeshop in Lakewood is closed as owners testify before the U.S. Supreme Court, Dec. 4, 2017. (Kevin J. Beaty/Denverite)

Colorado’s legal process treated a Christian baker unfairly, according to the U.S. Supreme Court.

That’s what a majority of the justices ruled today in the case of Jack Phillips, who refused to bake a wedding cake for Charlie Craig and David Mullins, a same-sex couple, in 2012.

The new ruling is “narrow” in its scope. It does not mean that religious business owners are now free to deny services to gay people. And a similar case could turn out very differently next time, analysts said.

But the justices took aim at some of the Colorado officials who had previously handled the case, and they set the stage for many more legal fights to come.

Let’s start with the ruling’s logic.

In all, seven of the nine justices sided with Phillips and his Masterpiece bakery in this case. The majority opinion said that Phillips was treated unfairly because members of the Colorado Civil Rights Commission made certain comments during Phillips’ case —  and they handled other cake-related cases differently.

The Masterpiece battle began in 2012, when Phillips said he would not bake a cake for Craig and Mullins’ wedding. He said he would make them birthday cakes and goods for any other occasion, but not a wedding cake.

The couple filed a complaint with the state, and the matter went to the Civil Rights Commission. And that, in the eyes of the U.S. Supreme Court majority, is where things went wrong.

At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community,” reads the opinion written by Justice Anthony Kennedy.

What were the offending remarks?

“[I]f a businessman wants to do business in the state and he’s got an issue with the — the law’s impacting his personal belief system, he needs to look at being able to compromise,” one commissioner said as the Civil Rights Commission discussed the case, according to the opinion. (We have asked for the original transcripts from the state.)

Later, the commissioner said that the ideas of religious freedom had been “used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust …  And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”

In the eyes of the majority, these comments screwed up the process. They undermined the idea that the commission was fulfilling its “solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation,” Kennedy wrote.

And by doing that, the commission violated the U.S. Constitution’s protections of religious expression, the majority found.

But the dissenting justices, Ruth Bader Ginsburg and Sonia Sotomayor, said that the comments only came from “one or two members” out of four decision-making bodies.

What about the other bakers?

The other major factor in this ruling was the way that Colorado handled other cake cases.

In March 2014, a man named William Jack asked several bakeries to make him custom cakes in the shape of open Bibles. He wanted them to have an image of a red “X” superimposed over two groomsmen holding hands in front of a cross. He also wanted one to say “Homosexuality is a detestable sin. Leviticus 18:2,” according to a state ruling.

The bakeries refused, though some offered to just bake the cakes without the messages.

This time, the Colorado Civil Rights Commission sided with the bakers, saying they were free to refuse to write the messages. Supreme Court Justice Neil Gorsuch said that was a clear case of treating people differently.

“The Commission denied Mr. Phillips that choice, even as it afforded the bakers in Mr. Jack’s case the choice to refuse to advance a message they deemed offensive to their secular commitments. That is not neutral,” wrote Gorsuch, who is from Colorado, in a concurring opinion.

But there were some significant differences in the cases, according to the dissenting justices. For one thing, Craig and Mullins apparently hadn’t requested a message on their cake.

“They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips would have sold,” as Ginsburg wrote in her dissent. “Phillips would not sell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others.”

And that arguably could be discrimination against a protected class. In contrast, the other bakeries wouldn’t have sold anti-gay cakes to anyone, Ginsburg continued.

For his part, Jack Phillips argued that the cake wasn’t just a cake — it was an artistic expression, one that he constitutionally can’t be forced to make. And Gorsuch seems to agree.

“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,” he wrote.

And if the other bakers can refuse to write anti-gay messages, Gorsuch argued, then Masterpiece must also be allowed to refuse to make messages — even if those messages aren’t in verbal form.

Ginsburg and Sotomayor don’t accept that logic. “Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it,” Ginsburg wrote.

What’s next?

All of Colorado’s laws are the same today as they were yesterday.

“The Court’s decision today was specific to the facts of this case,” said Sara Neel, Colorado Staff Attorney for the American Civil Liberties Union, in a written statement. “The Court did not change the long-standing rule that businesses open to the public must be open to all.”

The majority ruling acknowledged that  “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” and said they had constitutional rights. Similar cases could come out differently, depending on the facts, Kennedy wrote.

But the ruling also could signal the beginning of a new era of court battles. Writing for The Nation, Sarah Posner says the case is “hardly a harmless bump on the road to full equality.” The ruling shows that the court now has a pretty broad view of what constitutes “hostility” toward people’s religious beliefs, she argued.

The ruling “will embolden other Jack Phillipses to refuse to serve LGBTQ customers, and to hope for a ‘slip-up’ by a public official as uncontroversial as ‘religion should not be used as an excuse to discriminate,'” she wrote.

Meanwhile, the Alliance Defending Freedom — which represented Phillips — said it had won an important victory.

“Government hostility toward people of faith has no place in our society, yet the state of Colorado was openly antagonistic toward Jack’s religious beliefs about marriage,” as attorney Kristen Waggoner told The New York Times.

Craig and Mullins told The Denver Post that they were still planning their next steps. “We’re still going to stand up for the rights of our community — that’s what I can tell you,” Mullins said.

And Kevin Grantham, the Republican president of the Colorado Senate, said that the opinion was clear proof that the state needed to reform its Civil Rights Commission.

“We hate to say we told you so … but we told you so,” he said in a press statement. “… This shows precisely why the Civil Rights Commission needed to be depoliticized, de-radicalized and returned to its original mission — to protect the civil liberties of all Coloradans, not just a select few.”

For a deeper dive on the opinion, head over to SCOTUSblog.