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Living to fight another day

The Supreme Court narrowly rules for the Christian baker in Masterpiece, while strongly condemning Colorado’s treatment of religious beliefs on marriage

Living to fight another day

Jack Phillips, owner of Masterpiece Cakeshop, in his shop in Lakewood, Colo., after the U.S. Supreme Court ruled in his favor on June 4. (David Zalubowski/AP)

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.”

Emily Belz

Emily Belz

Emily is a senior reporter for WORLD Magazine. She is a World Journalism Institute graduate and previously reported for the The New York Daily News, The Indianapolis Star, and Philanthropy magazine. Emily resides in New York City. Follow her on Twitter @emlybelz.


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    Posted: Mon, 06/04/2018 07:22 pm

    Praise God and thank you to Kristen Waggoner, the Alliance Defending Freedom lawyer who argued the case before the high court.

  • psubrent
    Posted: Tue, 06/05/2018 07:27 am

    This is yet another instance where I've seen the phrase the "Supreme Court narrowly" rules/ruled.  One AP article removed "narrowly" after criticism.  I was surprised to see this in WORLD.  How exactly is 7-2 narrow?  I understand the limited scope of the decision, but it was NOT narrow...

  • Minivan Man's picture
    Minivan Man
    Posted: Tue, 06/05/2018 09:20 am

    Agreed.  Just report the facts, and let us decide if it is narrow or lopsided.

  • Trumpetly Speaking
    Posted: Tue, 06/05/2018 02:06 pm

    "Narrowly" describes how the ruling may be used to affect future cases. It does not refer to the vote count.  So in this case, the ruling was narrow in that it probably won't help Baronnelle Stutzman very much.  But we can hope it will begin to turn the tide in that direction.  I believe it was wise for the justices to take an incremental approach rather than an all-out and easily reversible standard setting type of ruling.

    Posted: Fri, 06/08/2018 04:54 pm

    Narrowly here evidently means they decline to let this case establish or affect much beyond the particulars involved. The Roe holding and the Obergfell holding were emphatically NOT narrow; they have a far reaching impact and effect the entire nation.

    Another case in Arizona has a lesbian couple who drove to a specially chosen calligraphy business. The owners are two gals who met at Beth Moore or Precepts etc. In other words... CHRISTIANS!! And surprise surprise surprise! The Christian calligraphers do not want to do invitations for a woman to woman marriage. And yes, I'm pretty sure there are a few pages of print shops and calligraphers in the phone book who would likely gladly take the money of the two affianced gal pals. The LGBT movement however wants to hoist up these printers, cake bakers etc for public shaming for less that full throated loud support for the Rainbow agenda. I hope no busines I own ever runs afowl of the Gaystapo!

  • DS
    Posted: Sun, 06/17/2018 07:03 pm

    I agree. Sure the Supreme Court needed a 2/3 majority, which would be 6 of 9 justices, but still, 7-2 cannot be a narrow victory.

  •  RodC's picture
    Posted: Tue, 06/05/2018 09:22 am

    I would appreciate an explanation of how the ruling can be termed as “narrow”.  (On the face of it, a 7-2 ruling might be termed “overwhelming”.)

  • DWBrown
    Posted: Tue, 06/05/2018 09:23 am

    I agree with psubrent, listening to the radio and other internet news titles I thought it was a narrow vote, but 7 to 2 is not narrow. I did not know the vote count until I read this artical and I suspect most the majority as it is reported will think it was a narrow vote. I get so tired of the truth being distorted at every turn and we wonder why the simple can't see.

  • SJAM
    Posted: Tue, 06/05/2018 11:20 am

    By saying it was a “Narrow Decision,” that doesn’t mean the vote was narrow. The vote could have been 9-0 and still be correctly termed a “narrow decision.” It is narrow because of the scope of the ruling.

    A narrow decision is one that is very specific and doesn’t necessarily set a precedent. The justices wrote that their ruling applied to this specific baker because of officials’’ actions in that specific state, but other bakers who make a similar business judgment could lose a future case.

  • psubrent
    Posted: Tue, 06/05/2018 02:27 pm

    Fair enough, but folks with whom I've spoken to this point don't see that nuance.  Journalists should be responsible with their word choice(s).  If their intent was to focus on the scope of the ruling, as you suggest (and I mentioned scope in my above post), then they should have used the word "limited" instead, rather than narrow, which is too easily misconstrued as journalistic bias.

  • SJAM
    Posted: Tue, 06/05/2018 04:37 pm

    I can agree with that. Maybe “narrow” is the more technically correct term, but “limited” would convey the same message more clearly.

    Posted: Fri, 06/08/2018 04:49 pm

    I'm a bit incredulous of stories of "offended" gay couples who are hurt by something as simple as a baker declining to provide a service or product in this case (wedding cake) which is readily available elsewhere. If a business owner tells me "Sorry Sawgunner, I'm afraid I cannot provide this good or service" then am I no longer free to tell that provider "Sorry but I cannot do business with YOU and I will take my business elsewhere and give my money to them not you?"  In the age of online Angie's List, yelp etc to critique any company or expose them as being "unfriendly" to sodomy why rush off to a state civil rights agency? [And yes, this commission has a very Orwellian name.. not much respect for 1st Amendment rights evidently]  The transcript of the verbal tongue lashing the baker endured from the commissioners likely helped his case out before the Supremes.

    In the mean time I hope the good folks of Colorado trim the wings of this agency and if the commissioners can be recalled or voted out, then folks in the Mile High city need to get busy making that happen.