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Cake
Baker wins US Supreme Court ruling against gay militants
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https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf
“He [cake baker] offered to sell
them anything [else] in his shop. He just explained that
he cannot create custom wedding cake designs that send a message
that violates his conscience, in this case a cake that is custom
in nature and sends a message celebrating a vision of marriage
that violates his conscience,” said Anderson.
Read more at
http://www.wnd.com/2018/06/spectacular-event-for-7-supremes-to-agree-in-bakers-case/#VXx7WWuv93w8OSD3.99
This is ruling is very fair.
You are gay, and I am not. I will make you a cake of any
flavor, texture, coloring, icing, candles, decoration that I
have to select from in my cake store, but I do not have to be
required to put words and "text" in the message on the cake that
is very offensive.
Colorado got it wrong because
Colorado lied when they said the cake baker refused to make a
cake for the gays, but the cake baker actually only refused to
put these specific words/text on the cake.
(Slip Opinion)
OCTOBER TERM, 2017
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be
released, as isbeing done in connection with this case, at the
time the opinion is issued.The syllabus constitutes no part of
the opinion of the Court but has beenprepared by the Reporter of
Decisions for the convenience of the reader. See
United
States v.
Detroit
Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MASTERPIECE CAKESHOP, LTD., ET AL.
v. COLORADO CIVIL RIGHTS COMMISSION
ET AL.
CERTIORARI TO THE COURT OF APPEALS OF COLORADO
No.
16–111. Argued December 5, 2017—Decided June 4, 2018
Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and
operatedby Jack Phillips, an expert baker and devout Christian.
In 2012 he told a same-sex couple that he would not create a
cake for their wedding celebration because of his religious
opposition to same-sex marriages—marriages that Colorado did not
then recognize—but that hewould sell them other baked goods,
e.g.,
birthday cakes. The couple filed a charge with the
Colorado Civil Rights Commission (Commission) pursuant to the
Colorado Anti-Discrimination Act (CADA),which prohibits, as
relevant here, discrimination based on sexual orientation in a
"place of business engaged in any sales to the public andany
place offering services . . . to the public." Under CADA’s
administrative review system, the Colorado Civil Rights Division
first found probable cause for a violation and referred the case
to the Commission. The Commission then referred the case for a
formal hearing before a state Administrative Law Judge (ALJ),
who ruled in the couple’s favor. In so doing, the ALJ rejected
Phillips’ First Amendmentclaims: that requiring him to create a
cake for a same-sex wedding would violate his right to free
speech by compelling him to exercise his artistic talents to
express a message with which he disagreed and would violate his
right to the free exercise of religion. Both the Commission and
the Colorado Court of Appeals affirmed.
Held : The Commission’s actions in this case violated
the Free Exercise Clause. Pp. 9–18.
(a) The laws and
the Constitution can, and in some instances must,protect gay persons
and gay couples in the exercise of their civil rights, but religious
and philosophical objections to gay marriage are protected views and
in some instances protected forms of expression. See
Obergefell
v.
Hodges, 576 U. S. ___, ___. While it is unexceptional
2 MASTERPIECE
CAKESHOP, LTD.
v. COLORADO CIVIL RIGHTS COMM’N Syllabus
that Colorado law
can protect gay persons in acquiring products and services on the
same terms and conditions as are offered to other members of the
public, the law must be applied in a manner that is neutral toward
religion. To Phillips, his claim that using his artisticskills to
make an expressive statement, a wedding endorsement inhis own voice
and of his own creation, has a significant First Amendment speech
component and implicates his deep and sincerereligious beliefs. His
dilemma was understandable in 2012, which was before Colorado
recognized the validity of gay marriages performed in the State and
before this Court issued
United States
v.
Windsor, 570 U. S. 744, or
Obergefell.
Given the State’s position at the time, there is some force to
Phillips’ argument that he was notunreasonable in deeming his
decision lawful. State law at the time also afforded storekeepers
some latitude to decline to create specificmessages they considered
offensive. Indeed, while the instant enforcement proceedings were
pending, the State Civil Rights Divisionconcluded in at least three
cases that a baker acted lawfully in declining to create cakes with
decorations that demeaned gay persons orgay marriages. Phillips too
was entitled to a neutral and respectfulconsideration of his claims
in all the circumstances of the case. Pp. 9–12.
(b) That
consideration was compromised, however, by the Commission’s
treatment of Phillips’ case, which showed elements of a clearand
impermissible hostility toward the sincere religious beliefs
motivating his objection. As the record shows, some of the
commissioners at the Commission’s formal, public hearings endorsed
the view that religious beliefs cannot legitimately be carried into
the public sphere or commercial domain, disparaged Phillips’ faith
as despicable andcharacterized it as merely rhetorical, and compared
his invocation of his sincerely held religious beliefs to defenses
of slavery and the Holocaust. No commissioners objected to the
comments. Nor were they mentioned in the later state-court ruling or
disavowed in the briefsfiled here. The comments thus cast doubt on
the fairness and impartiality of the Commission’s adjudication of
Phillips’ case.
Another indication of hostility is the different treatment of
Phillips’ case and the cases of other bakers with objections to
anti-gay messages who prevailed before the Commission. The
Commission ruled against Phillips in part on the theory that any
message on the requested wedding cake would be attributed to the
customer, not to the baker. Yet the Division did not address this
point in any of the casesinvolving requests for cakes depicting
anti-gay marriage symbolism.The Division also considered that each
bakery was willing to sell other products to the prospective
customers, but the Commission foundPhillips’ willingness to do the
same irrelevant. The State Court of 3 Cite as: 584 U. S. ____ (2018)
Syllabus
Appeals’ brief discussion of this disparity of treatment does
not answer Phillips’ concern that the State’s practice was to
disfavor the religious basis of his objection. Pp. 12–16.
(c) For these
reasons, the Commission’s treatment of Phillips’ caseviolated the
State’s duty under the First Amendment not to base laws or
regulations on hostility to a religion or religious viewpoint. The
government, consistent with the Constitution’s guarantee of free
exercise, cannot impose regulations that are hostile to the
religious beliefs of affected citizens and cannot act in a manner
that passes judgment upon or presupposes the illegitimacy of
religious beliefsand practices.
Church of
Lukumi Babalu Aye, Inc. v.
Hialeah,
508
U. S. 520. Factors
relevant to the assessment of governmental neutrality include "the
historical background of the decision under challenge, the specific
series of events leading to the enactment or officialpolicy in
question, and the legislative or administrative history, including
contemporaneous statements made by members of the decisionmaking
body." Id.,
at 540. In view of these factors, the record here demonstrates that
the Commission’s consideration of Phillips’case was neither tolerant
nor respectful of his religious beliefs. The Commission gave "every
appearance,"
id., at 545, of adjudicating hisreligious objection based
on a negative normative "evaluation of theparticular justification"
for his objection and the religious grounds forit,
id.,
at 537, but government has no role in expressing or even suggesting
whether the religious ground for Phillips’ conscience-basedobjection
is legitimate or illegitimate. The inference here is thus that
Phillips’ religious objection was not considered with the
neutralityrequired by the Free Exercise Clause. The State’s interest
could have been weighed against Phillips’ sincere religious
objections in a way consistent with the requisite religious
neutrality that must be strictlyobserved. But the official
expressions of hostility to religion in someof the commissioners’
comments were inconsistent with that requirement, and the
Commission’s disparate consideration of Phillips’case compared to
the cases of the other bakers suggests the same.Pp. 16–18.
370
P. 3d 272, reversed.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C.
J., and BREYER, ALITO, KAGAN, and GORSUCH, JJ., joined. KAGAN, J.,
filed a concurring opinion, in which BREYER, J., joined. GORSUCH,
J., filed a concurring opinion, in which ALITO, J., joined. THOMAS,
J., filed an opinion concurring in part and concurring in the
judgment, in whichGORSUCH, J., joined. GINSBURG, J., filed a
dissenting opinion, in which SOTOMAYOR, J., joined.
_________________ _________________ 1 Cite as: 584 U. S. ____ (2018)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before
publication in thepreliminary print of the United States
Reports. Readers are requested tonotify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C.
20543, of any typographical or other formal errors, in orderthat
corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES
No.
16–111
MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS
v.
COLORADO CIVIL RIGHTS COMMISSION, ET AL.
ON
WRIT OF CERTIORARI TO THE COURT OF APPEALS OF COLORADO
[June 4, 2018]
JUSTICE KENNEDY delivered the opinion of the Court.
In
2012 a same-sex couple visited MasterpieceCakeshop, a bakery in
Colorado, to make inquiries aboutordering a cake for their wedding
reception. The shop’sowner told the couple that he would not create
a cake for their wedding because of his religious opposition to
same-sex marriages—marriages the State of Colorado itself did not
recognize at that time. The couple filed a charge with the Colorado
Civil Rights Commission alleging discrimination on the basis of
sexual orientation in violation of the Colorado Anti-Discrimination
Act.
The
Commission determined that the shop’s actions violated the Act and
ruled in the couple’s favor. The Colorado state courts affirmed the
ruling and its enforcementorder, and this Court now must decide
whether the Commission’s order violated the Constitution.
The
case presents difficult questions as to the properreconciliation of
at least two principles. The first is the authority of a State and
its governmental entities to protect the rights and dignity of gay
persons who are, or wish to be, married but who face discrimination
when they seek 2 MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N Opinion of the Court
goods or services. The second is the right of all persons toexercise
fundamental freedoms under the First Amendment, as applied to the
States through the FourteenthAmendment.
The
freedoms asserted here are both the freedom of speech and the free
exercise of religion. The free speechaspect of this case is
difficult, for few persons who have seen a beautiful wedding cake
might have thought of its creation as an exercise of protected
speech. This is an instructive example, however, of the proposition
that the application of constitutional freedoms in new contexts
candeepen our understanding of their meaning.
One
of the difficulties in this case is that the partiesdisagree as to
the extent of the baker’s refusal to provide service. If a baker
refused to design a special cake with words or images celebrating
the marriage—for instance, a cake showing words with religious
meaning—that might be different from a refusal to sell any cake at
all. In defining whether a baker’s creation can be protected,
thesedetails might make a difference.
The
same difficulties arise in determining whether a baker has a valid
free exercise claim. A baker’s refusal to attend the wedding to
ensure that the cake is cut the rightway, or a refusal to put
certain religious words or decorations on the cake, or even a
refusal to sell a cake that has been baked for the public generally
but includes certainreligious words or symbols on it are just three
examples of possibilities that seem all but endless.
Whatever the confluence of speech and free exercise principles might
be in some cases, the Colorado Civil Rights Commission’s
consideration of this case was inconsistent with the State’s
obligation of religious neutrality.The reason and motive for the
baker’s refusal were based on his sincere religious beliefs and
convictions. The Court’s precedents make clear that the baker, in
his capacity as the owner of a business serving the public, might 3
Cite as: 584 U. S. ____ (2018)
Opinion of the Court
have his right to the free exercise of religion limited by generally
applicable laws. Still, the delicate question ofwhen the free
exercise of his religion must yield to an otherwise valid exercise
of state power needed to be determined in an adjudication in which
religious hostility onthe part of the State itself would not be a
factor in thebalance the State sought to reach. That
requirement,however, was not met here. When the Colorado Civil
Rights Commission considered this case, it did not do so with the
religious neutrality that the Constitutionrequires.
Given all these considerations, it is proper to hold that whatever
the outcome of some future controversy involving facts similar to
these, the Commission’s actions here violated the Free Exercise
Clause; and its order must be set aside.
I A
Masterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a
suburb of Denver. The shop offers a variety ofbaked goods, ranging
from everyday cookies and brownies to elaborate custom-designed
cakes for birthday parties,weddings, and other events.
Jack Phillips is an expert baker who has owned and operated the shop
for 24 years. Phillips is a devout Christian. He has explained that
his "main goal in life is to be obedient to" Jesus Christ and
Christ’s "teachings in all aspects of his life." App. 148. And he
seeks to "honor God through his work at Masterpiece Cakeshop."
Ibid.
One of Phillips’ religious beliefs is that "God’s intention
for marriage from the beginning of history is that it is and should
be the union of one man and one woman."
Id.,
at 149. To Phillips, creating a wedding cake for a same-sex wedding
would be equivalent to participating in a celebration that is
contrary to his own most deeply held beliefs. 4 MASTERPIECE CAKESHOP,
LTD. v.
COLORADO CIVIL RIGHTS COMM’N Opinion of the Court
Phillips met Charlie Craig and Dave Mullins when theyentered his
shop in the summer of 2012. Craig and Mullins were planning to
marry. At that time, Colorado did not recognize same-sex marriages,
so the couple planned to wed legally in Massachusetts and afterwards
to host a reception for their family and friends in Denver. To
prepare for their celebration, Craig and Mullins visited the shop
and told Phillips that they were interested in ordering a cake for
"our wedding."
Id., at 152 (emphasis deleted). They did not mention
the design of the cake theyenvisioned.
Phillips informed the couple that he does not "create"wedding cakes
for same-sex weddings.
Ibid.
He explained, "I’ll make your birthday cakes, shower cakes,
sell you cookies and brownies, I just don’t make cakes for samesex
weddings."
Ibid. The couple left the shop withoutfurther discussion.
The
following day, Craig’s mother, who had accompanied the couple to the
cakeshop and been present for their interaction with Phillips,
telephoned to ask Phillips why he had declined to serve her son.
Phillips explained that he does not create wedding cakes for
same-sex weddingsbecause of his religious opposition to same-sex
marriage, and also because Colorado (at that time) did not
recognizesame-sex marriages.
Id.,
at 153. He later explained hisbelief that "to create a wedding cake
for an event thatcelebrates something that directly goes against the
teachings of the Bible, would have been a personal endorsement and
participation in the ceremony and relationship that they were
entering into."
Ibid. (emphasis deleted).
B For most of its
history, Colorado has prohibited discrimination in places of public
accommodation. In 1885, less than a decade after Colorado achieved
statehood, the General Assembly passed "An Act to Protect All
Citizens 5 Cite as: 584 U. S. ____ (2018)
Opinion of the Court
in
Their Civil Rights," which guaranteed "full and equal enjoyment" of
certain public facilities to "all citizens," "regardless of race,
color or previous condition of servitude." 1885 Colo. Sess. Laws pp.
132–133. A decade later, the General Assembly expanded the
requirement to apply to "all other places of public accommodation."
1895 Colo. Sess. Laws ch. 61, p. 139.
Today, the Colorado Anti-Discrimination Act (CADA)carries forward
the state’s tradition of prohibiting discrimination in places of
public accommodation. Amended in 2007 and 2008 to prohibit
discrimination on the basis of sexual orientation as well as other
protected characteristics, CADA in relevant part provides as
follows:
"It is a discriminatory practice and unlawful for a person,
directly or indirectly, to refuse, withhold from, or deny to an
individual or a group, because of disability, race, creed,
color, sex, sexual orientation, marital status, national origin,
or ancestry, the full and equal enjoyment of the goods,
services, facilities, privileges,advantages, or accommodations
of a place of public accommodation." Colo. Rev. Stat.
§24–34–601(2)(a) (2017).
The
Act defines "public accommodation" broadly to includeany "place of
business engaged in any sales to the public and any place offering
services . . . to the public," but excludes "a church, synagogue,
mosque, or other place thatis principally used for religious
purposes." §24–34–601(1).
CADA establishes an administrative system for theresolution of
discrimination claims. Complaints of discrimination in violation of
CADA are addressed in the first instance by the Colorado Civil
Rights Division. The Division investigates each claim; and if it
finds probable causethat CADA has been violated, it will refer the
matter to the Colorado Civil Rights Commission. The Commission, 6
MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N Opinion of the Court
in
turn, decides whether to initiate a formal hearing before a state
Administrative Law Judge (ALJ), who willhear evidence and argument
before issuing a written decision. See §§24–34–306, 24–4–105(14).
The decision of the ALJ may be appealed to the full Commission, a
seven-member appointed body. The Commission holds a publichearing
and deliberative session before voting on the case. If the
Commission determines that the evidence proves a CADA violation, it
may impose remedial measures as provided by statute. See
§24–34–306(9). Available remedies include, among other things,
orders to cease-anddesist a discriminatory policy, to file regular
compliance reports with the Commission, and "to take
affirmativeaction, including the posting of notices setting forth
the substantive rights of the public." §24–34–605. Colorado law does
not permit the Commission to assess moneydamages or fines.
§§24–34–306(9), 24–34–605.
C Craig and Mullins
filed a discrimination complaint against Masterpiece Cakeshop and
Phillips in August 2012, shortly after the couple’s visit to the
shop. App. 31.The complaint alleged that Craig and Mullins had
beendenied "full and equal service" at the bakery because oftheir
sexual orientation,
id.,
at 35, 48, and that it was Phillips’ "standard business practice"
not to provide cakesfor same-sex weddings,
id.,
at 43. The Civil Rights Division opened an investigation. The
investigator found that "on multiple occasions," Phillips"turned
away potential customers on the basis of their sexual orientation,
stating that he could not create a cakefor a same-sex wedding
ceremony or reception" because his religious beliefs prohibited it
and because the potentialcustomers "were doing something illegal" at
that time. Id.,
at 76. The investigation found that Phillips had declined to sell
custom wedding cakes to about six other 7 Cite as: 584 U. S. ____
(2018)
Opinion of the Court
same-sex couples on this basis.
Id.,
at 72. The investigator also recounted that, according to affidavits
submittedby Craig and Mullins, Phillips’ shop had refused to sell
cupcakes to a lesbian couple for their commitment celebration
because the shop "had a policy of not selling baked goods to
same-sex couples for this type of event."
Id.,
at
73.
Based on these findings, the Division found probable cause that
Phillips violated CADA and referred the case to the Civil Rights
Commission.
Id., at 69.
The
Commission found it proper to conduct a formal hearing, and it sent
the case to a State ALJ. Finding nodispute as to material facts, the
ALJ entertained cross-motions for summary judgment and ruled in the
couple’sfavor. The ALJ first rejected Phillips’ argument
thatdeclining to make or create a wedding cake for Craig andMullins
did not violate Colorado law. It was undisputed that the shop is
subject to state public accommodations laws. And the ALJ determined
that Phillips’ actionsconstituted prohibited discrimination on the
basis of sex- ual orientation, not simply opposition to same-sex
marriageas Phillips contended. App. to Pet. for Cert. 68a–72a.
Phillips raised two constitutional claims before the ALJ.He first
asserted that applying CADA in a way that wouldrequire him to create
a cake for a same-sex wedding would violate his First Amendment
right to free speech by compelling him to exercise his artistic
talents to express a message with which he disagreed. The ALJ
rejected the contention that preparing a wedding cake is a form of
protected speech and did not agree that creating Craig and Mullins’
cake would force Phillips to adhere to "an ideological point of
view." Id.,
at 75a. Applying CADA to thefacts at hand, in the ALJ’s view, did
not interfere with Phillips’ freedom of speech.
Phillips also contended that requiring him to createcakes for
same-sex weddings would violate his right to the free exercise of
religion, also protected by the First 8 MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N Opinion of the Court
Amendment. Citing this Court’s precedent in
Employment
Div., Dept. of Human Resources of Ore. v.
Smith,
494 U. S. 872 (1990), the ALJ determined that CADA is a "valid and
neutral law of general applicability" and therefore that applying it
to Phillips in this case did not violate the FreeExercise Clause.
Id.,
at 879; App. to Pet. for Cert. 82a– 83a. The ALJ thus ruled against
Phillips and thecakeshop and in favor of Craig and Mullins on both
constitutional claims.
The
Commission affirmed the ALJ’s decision in full.
Id.,
at 57a. The Commission ordered Phillips to "cease and desist from
discriminating against . . . same-sex couples byrefusing to sell
them wedding cakes or any product [they]would sell to heterosexual
couples."
Ibid. It also ordered additional remedial measures,
including "comprehensive staff training on the Public Accommodations
section" of CADA "and changes to any and all company policies to
comply with . . . this Order."
Id.,
at 58a. The Commission additionally required Phillips to prepare
"quarterly compliance reports" for a period of two years documenting
"the number of patrons denied service" and why, along with "astatement
describing the remedial actions taken."
Ibid.
Phillips appealed to the Colorado Court of Appeals,which affirmed
the Commission’s legal determinations and remedial order. The court
rejected the argument that the "Commission’s order
unconstitutionally compels" Phillips and the shop "to convey a
celebratory message about same sex marriage."
Craig
v.
Masterpiece Cakeshop, Inc., 370
P.
3d 272, 283 (2015). The court also rejected the argument that the
Commission’s order violated the Free Exercise Clause. Relying on
this Court’s precedent in
Smith,
supra,
at 879, the court stated that the Free Exercise Clause "does not
relieve an individual of the obligation tocomply with a valid and
neutral law of general applicability" on the ground that following
the law would interferewith religious practice or belief. 370 P. 3d,
at 289. The 9 Cite as: 584 U. S. ____ (2018) Opinion of the Court
court concluded that requiring Phillips to comply with the statute
did not violate his free exercise rights. The Colorado Supreme Court
declined to hear the case.
Phillips sought review here, and this Court grantedcertiorari. 582
U. S. ___ (2017). He now renews his claims under the Free Speech and
Free Exercise Clauses of theFirst Amendment.
II A
Our
society has come to the recognition that gay personsand gay couples
cannot be treated as social outcasts or asinferior in dignity and
worth. For that reason the laws and the Constitution can, and in
some instances must, protect them in the exercise of their civil
rights. The exercise of their freedom on terms equal to others must
be given great weight and respect by the courts. At the same time,
the religious and philosophical objections to gaymarriage are
protected views and in some instances protected forms of expression.
As this Court observed in
Obergefell
v.
Hodges, 576 U. S. ___ (2015), "[t]he First Amendment
ensures that religious organizations and persons are given proper
protection as they seek to teach the principles that are so
fulfilling and so central to theirlives and faiths."
Id.,
at ___ (slip op., at 27). Nevertheless, while those religious and
philosophical objections are protected, it is a general rule that
such objections do notallow business owners and other actors in the
economy and in society to deny protected persons equal access
togoods and services under a neutral and generally applicable public
accommodations law. See
Newman
v.
Piggy Park Enterprises, Inc., 390 U. S. 400, 402, n. 5
(1968) (per
curiam); see also
Hurley
v.
Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.,
515 U. S. 557, 572 (1995) ("Provisions like these are well within
the State’susual power to enact when a legislature has reason to 10
MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N Opinion of the Court
believe that a given group is the target of discrimination, and they
do not, as a general matter, violate the First or Fourteenth
Amendments").
When it comes to weddings, it can be assumed that amember of the
clergy who objects to gay marriage on moral and religious grounds
could not be compelled toperform the ceremony without denial of his
or her right tothe free exercise of religion. This refusal would be
well understood in our constitutional order as an exercise of
religion, an exercise that gay persons could recognize and accept
without serious diminishment to their own dignityand worth. Yet if
that exception were not confined, 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 rightslaws that
ensure equal access to goods, services, and public accommodations.
It
is unexceptional that Colorado law can protect gay persons, just as
it can protect other classes of individuals, in acquiring whatever
products and services they chooseon the same terms and conditions as
are offered to other members of the public. And there are no doubt
innumerable goods and services that no one could argue implicate the
First Amendment. Petitioners conceded, moreover, that if a baker
refused to sell any goods or any cakes for gay weddings, that would
be a different matter and theState would have a strong case under
this Court’s precedents that this would be a denial of goods and
services that went beyond any protected rights of a baker who offers
goods and services to the general public and issubject to a
neutrally applied and generally applicable public accommodations
law. See Tr. of Oral Arg. 4–7, 10.
Phillips claims, however, that a narrower issue is presented. He
argues that he had to use his artistic skills tomake an expressive
statement, a wedding endorsement in 11 Cite as: 584 U. S. ____
(2018)
Opinion of the Court
his
own voice and of his own creation. As Phillips would see the case,
this contention has a significant First Amendment speech component
and implicates his deepand sincere religious beliefs. In this
context the baker likely found it difficult to find a line where the
customers’ rights to goods and services became a demand for him
toexercise the right of his own personal expression for their
message, a message he could not express in a way consistent with his
religious beliefs.
Phillips’ dilemma was particularly understandable given the
background of legal principles and administration of the law in
Colorado at that time. His decision and his actions leading to the
refusal of service all occurred inthe year 2012. At that point,
Colorado did not recognize the validity of gay marriages performed
in its own State.See Colo. Const., Art. II, §31 (2012); 370 P. 3d,
at 277. At the time of the events in question, this Court had not
issued its decisions either in
United States
v.
Windsor, 570
U.
S. 744 (2013), or
Obergefell. Since the State itself did not allow those
marriages to be performed in Colorado, there is some force to the
argument that the baker was not unreasonable in deeming it lawful to
decline to take an action that he understood to be an expression of
support for their validity when that expression was contrary to
hissincerely held religious beliefs, at least insofar as his refusal
was limited to refusing to create and express amessage in support of
gay marriage, even one planned totake place in another State.
At
the time, state law also afforded storekeepers somelatitude to
decline to create specific messages the storekeeper considered
offensive. Indeed, while enforcement proceedings against Phillips
were ongoing, the ColoradoCivil Rights Division itself endorsed this
proposition incases involving other bakers’ creation of cakes,
concluding on at least three occasions that a baker acted lawfully
indeclining to create cakes with decorations that demeaned 12
MASTERPIECE CAKESHOP, LTD.
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COLORADO CIVIL RIGHTS COMM’N Opinion of the Court
gay
persons or gay marriages. See
Jack
v.
Gateaux, Ltd., Charge No. P20140071X (Mar. 24, 2015);
Jack
v. Le
Bakery Sensual, Inc., Charge No. P20140070X (Mar. 24,
2015); Jack
v.
Azucar Bakery, Charge No. P20140069X (Mar. 24, 2015).
There were, to be sure, responses to these argumentsthat the State
could make when it contended for a different result in seeking the
enforcement of its generally applicable state regulations of
businesses that serve the public. And any decision in favor of the
baker would haveto be sufficiently constrained, lest all purveyors
of goods and services who object to gay marriages for moral
andreligious reasons in effect be allowed to put up signs saying "no
goods or services will be sold if they will be used for gay
marriages," something that would impose a seriousstigma on gay
persons. But, nonetheless, Phillips wasentitled to the neutral and
respectful consideration of his claims in all the circumstances of
the case.
B The neutral and
respectful consideration to which Phillips was entitled was
compromised here, however. The Civil Rights Commission’s treatment
of his case has some elements of a clear and impermissible hostility
toward thesincere religious beliefs that motivated his objection.
That hostility surfaced at the Commission’s formal, public hearings,
as shown by the record. On May 30, 2014, the seven-member Commission
convened publicly toconsider Phillips’ case. 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 businesscommunity. One
commissioner suggested that Phillipscan believe "what he wants to
believe," but cannot act on his religious beliefs "if he decides to
do business in the 13 Cite as: 584 U. S. ____ (2018)
Opinion of the Court
state." Tr. 23. A few moments later, the commissioner restated the
same position: "[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."
Id.,
at 30. Standingalone, these statements are susceptible of different
interpretations. On the one hand, they might mean simply that a
business cannot refuse to provide services based onsexual
orientation, regardless of the proprietor’s personal views. On the
other hand, they might be seen as inappropriate and dismissive
comments showing lack of dueconsideration for Phillips’ free
exercise rights and thedilemma he faced. In view of the comments
that followed, the latter seems the more likely.
On
July 25, 2014, the Commission met again. This meeting, too, was
conducted in public and on the record.On this occasion another
commissioner made specificreference to the previous meeting’s
discussion but said far more to disparage Phillips’ beliefs. The
commissioner stated:
"I would also like to reiterate what we said in the hearing or
the last meeting. Freedom of religion and religion has been used
to justify all kinds of discrimination throughout history,
whether it be slavery, whether it be the holocaust, whether it
be—I mean, we—we can list hundreds of situations where freedom
of religion has been used to justify discrimination.And to me it
is one of the most despicable pieces of rhetoric that people can
use to—to use their religionto hurt others." Tr. 11–12.
To
describe a man’s faith as "one of the most despicable pieces of
rhetoric that people can use" is to disparage hisreligion in at
least two distinct ways: by describing it as despicable, and also by
characterizing it as merely rhetori14 MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N Opinion of the Court
cal—something insubstantial and even insincere. The commissioner
even went so far as to compare Phillips’ invocation of his sincerely
held religious beliefs to defensesof slavery and the Holocaust. This
sentiment is inappropriate for a Commission charged with the solemn
responsibility of fair and neutral enforcement of Colorado’s
anti-discrimination law—a law that protects discrimination onthe
basis of religion as well as sexual orientation.
The
record shows no objection to these comments fromother commissioners.
And the later state-court rulingreviewing the Commission’s decision
did not mentionthose comments, much less express concern with their
content. Nor were the comments by the commissioners disavowed in the
briefs filed in this Court. For these reasons, the Court cannot
avoid the conclusion that these statements cast doubt on the
fairness and impartiality of the Commission’s adjudication of
Phillips’ case. Members of the Court have disagreed on the question
whether statements made by lawmakers may properly be taken into
account in determining whether a law intentionally discriminates on
the basis of religion. See
Church of
Lukumi Babalu Aye, Inc. v.
Hialeah,
508 U. S. 520, 540– 542 (1993);
id.,
at 558 (Scalia, J., concurring in part and concurring in
judgment). In this case, however, the remarks were made in a very
different context—by an adjudicatory body deciding a particular
case.
Another indication of hostility is the difference in treatment
between Phillips’ case and the cases of other bakers who objected to
a requested cake on the basis of conscienceand prevailed before the
Commission.
As
noted above, on at least three other occasions the Civil Rights
Division considered the refusal of bakers to create cakes with
images that conveyed disapproval ofsame-sex marriage, along with
religious text. Each time, the Division found that the baker acted
lawfully in refusing service. It made these determinations because,
in the 15 Cite as: 584 U. S. ____ (2018)
Opinion of the Court
words of the Division, the requested cake included "wording and
images [the baker] deemed derogatory,"
Jack
v.
Gateaux, Ltd., Charge No. P20140071X, at 4; featured
"language and images [the baker] deemed hateful,"
Jack
v. Le
Bakery Sensual, Inc., Charge No. P20140070X, at 4; or
displayed a message the baker "deemed as discriminatory,
Jack
v.
Azucar Bakery, Charge No. P20140069X, at 4.
The
treatment of the conscience-based objections at issue in these three
cases contrasts with the Commission’s treatment of Phillips’
objection. The Commission ruled against Phillips in part on the
theory that any messagethe requested wedding cake would carry would
be attributed to the customer, not to the baker. Yet the Division
did not address this point in any of the other caseswith respect to
the cakes depicting anti-gay marriagesymbolism. Additionally, the
Division found no violation of CADA in the other cases in part
because each bakerywas willing to sell other products, including
those depicting Christian themes, to the prospective customers. But
the Commission dismissed Phillips’ willingness to sell"birthday
cakes, shower cakes, [and] cookies and brownies," App. 152, to gay
and lesbian customers as irrelevant.The treatment of the other cases
and Phillips’ case could reasonably be interpreted as being
inconsistent as to thequestion of whether speech is involved, quite
apart from whether the cases should ultimately be distinguished. In
short, the Commission’s consideration of Phillips’
religiousobjection did not accord with its treatment of these other
objections.
Before the Colorado Court of Appeals, Phillips protested that this
disparity in treatment reflected hostility on the part of the
Commission toward his beliefs. He argued that the Commission had
treated the other bakers’ conscience-based objections as legitimate,
but treated his as illegitimate—thus sitting in judgment of his
religious beliefs themselves. The Court of Appeals addressed the
disparity 16 MASTERPIECE CAKESHOP, LTD.
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COLORADO CIVIL RIGHTS COMM’N Opinion of the Court
only in passing and relegated its complete analysis of theissue to a
footnote. There, the court stated that "[t]his case is
distinguishable from the Colorado Civil Rights Division’s recent
findings that [the other bakeries] inDenver did not discriminate
against a Christian patron on the basis of his creed" when they
refused to create therequested cakes. 370 P. 3d, at 282, n. 8. In
those cases, the court continued, there was no impermissible
discrimination because "the Division found that the bakeries . . .
refuse[d] the patron’s request . . . because of the offensive nature
of the requested message."
Ibid.
A
principled rationale for the difference in treatment ofthese two
instances cannot be based on the government’sown assessment of
offensiveness. Just as "no official, highor petty, can prescribe
what shall be orthodox in politics,nationalism, religion, or other
matters of opinion,"
West Virginia
Bd. of Ed. v.
Barnette,
319 U. S. 624, 642 (1943), it is not, as the Court has repeatedly
held, the role of the State or its officials to prescribe what shall
be offensive.See
Matal v.
Tam,
582 U. S. ___, ___–___ (2017) (opinion of ALITO, J.) (slip op., at
22–23). The Colorado court’s attempt to account for the difference
in treatment elevates one view of what is offensive over another and
itself sends a signal of official disapproval of Phillips’ religious
beliefs. The court’s footnote does not, therefore, answer the
baker’s concern that the State’s practice was to disfavor the
religious basis of his objection.
C For the reasons
just described, the Commission’s treatment of Phillips’ case
violated the State’s duty under theFirst Amendment not to base laws
or regulations on hostility to a religion or religious viewpoint. In
Church of
Lukumi Babalu Aye, supra, the Court made clear that the
government, if it is to respect the Constitution’s guarantee of free
exercise, cannot impose 17 Cite as: 584 U. S. ____ (2018)
Opinion of the Court
regulations that are hostile to the religious beliefs of affected
citizens and cannot act in a manner that passes judgment upon or
presupposes the illegitimacy of religious beliefs and practices. The
Free Exercise Clause bars even "subtle departures from neutrality"
on matters of religion.
Id.,
at 534. Here, that means the Commission was obliged under the Free
Exercise Clause to proceed in a manner neutral toward and tolerant
of Phillips’ religious beliefs. The Constitution "commits government
itself to religioustolerance, and upon even slight suspicion that
proposals for state intervention stem from animosity to religion
ordistrust of its practices, all officials must pause to remember
their own high duty to the Constitution and to the rights it
secures." Id.,
at 547.
Factors relevant to the assessment of governmentalneutrality include
"the historical background of the decision under challenge, the
specific series of events leading to the enactment or official
policy in question, and thelegislative or administrative history,
including contemporaneous statements made by members of the
decisionmaking body."
Id.,
at 540. In view of these factors the record here demonstrates that
the Commission’s consideration of Phillips’ case was neither
tolerant nor respectful of Phillips’ religious beliefs. The
Commission gave "every appearance,"
id.,
at 545, of adjudicating Phillips’ religiousobjection based on a
negative normative "evaluation of the particular justification" for
his objection and the religiousgrounds for it.
Id.,
at 537. It hardly requires restating that government has no role in
deciding or even suggesting whether the religious ground for
Phillips’ conscience-based objection is legitimate or illegitimate.
On these facts, the Court must draw the inference that Phillips’
religious objection was not considered with the neutralitythat the
Free Exercise Clause requires.
While the issues here are difficult to resolve, it must be concluded
that the State’s interest could have been 18 MASTERPIECE CAKESHOP,
LTD. v.
COLORADO CIVIL RIGHTS COMM’N Opinion of the Court
weighed against Phillips’ sincere religious objections in a way
consistent with the requisite religious neutrality thatmust be
strictly observed. The official expressions of hostility to religion
in some of the commissioners’ comments—comments that were not
disavowed at the Commission or by the State at any point in the
proceedings that led to affirmance of the order—were inconsistent
with what the Free Exercise Clause requires. The Commission’s
disparate consideration of Phillips’ case compared tothe cases of
the other bakers suggests the same. For these reasons, the order
must be set aside.
III The
Commission’s hostility was inconsistent with theFirst Amendment’s
guarantee that our laws be applied ina manner that is neutral toward
religion. Phillips wasentitled to a neutral decisionmaker who would
give full and fair consideration to his religious objection as
hesought to assert it in all of the circumstances in which thiscase
was presented, considered, and decided. In this case the
adjudication concerned a context that may well be different going
forward in the respects noted above. However later cases raising
these or similar concerns are resolved in the future, for these
reasons the rulings of theCommission and of the state court that
enforced the Commission’s order must be invalidated. The outcome of
cases like this in other circumstances must await further
elaboration in the courts, all in the context of recognizing that
these disputes must be resolved with tolerance, without undue
disrespect to sincere religious beliefs, and without subjecting gay
persons to indignities when they seek goods and services in an
openmarket. The judgment of the Colorado Court of Appeals is
reversed.
It is so ordered.
_________________ _________________ 1 Cite as: 584 U. S. ____
(2018)
KAGAN, J., concurring
SUPREME COURT OF THE UNITED STATES
No.
16–111
MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS
v.
COLORADO CIVIL RIGHTS COMMISSION, ET AL.
ON
WRIT OF CERTIORARI TO THE COURT OF APPEALS OF COLORADO
[June 4, 2018]
JUSTICE KAGAN, with whom JUSTICE BREYER joins,concurring.
"[I]t
is a general rule that [religious and philosophical] objections do
not allow business owners and other actors in the economy and in
society to deny protected persons equal access to goods and services
under a neutral and generally applicable public accommodations law."
Ante,
at
9.
But in upholding that principle, state actors cannotshow hostility
to religious views; rather, they must givethose views "neutral and
respectful consideration."
Ante,
at 12. I join the Court’s opinion in full because I believethe
Colorado Civil Rights Commission did not satisfy that obligation. I
write separately to elaborate on one of the bases for the Court’s
holding.
The
Court partly relies on the "disparate consideration of Phillips’
case compared to the cases of [three] other bakers" who "objected to
a requested cake on the basis ofconscience."
Ante,
at 14, 18. In the latter cases, a customer named William Jack sought
"cakes with images that conveyed disapproval of same-sex marriage,
along with religious text"; the bakers whom he approached refused
tomake them.
Ante, at 15; see
post,
at 3 (GINSBURG, J., dissenting) (further describing the requested
cakes).Those bakers prevailed before the Colorado Civil
RightsDivision and Commission, while Phillips—who objected for 2
MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N KAGAN, J., concurring
religious reasons to baking a wedding cake for a same-sexcouple—did
not. The Court finds that the legal reasoningof the state agencies
differed in significant ways as between the Jack cases and the
Phillips case. See
ante,
at
15.
And the Court takes especial note of the suggestion made by the
Colorado Court of Appeals, in comparingthose cases, that the state
agencies found the message Jack requested "offensive [in] nature."
Ante,
at 16 (internal quotation marks omitted). As the Court states, a
"principled rationale for the difference in treatment" cannot be
"based on the government’s own assessment ofoffensiveness."
Ibid.
What makes the state agencies’ consideration yet moredisquieting is
that a proper basis for distinguishing the cases was available—in
fact, was obvious. The Colorado Anti-Discrimination Act (CADA) makes
it unlawful for a place of public accommodation to deny "the full
and equalenjoyment" of goods and services to individuals based
oncertain characteristics, including sexual orientation and creed.
Colo. Rev. Stat. §24–34–601(2)(a) (2017). The three bakers in the
Jack cases did not violate that law. Jack requested them to make a
cake (one denigrating gay people and same-sex marriage) that they
would not havemade for any customer. In refusing that request, the
bakers did not single out Jack because of his religion, but instead
treated him in the same way they would have treated anyone else—just
as CADA requires. By contrast,the same-sex couple in this case
requested a wedding cakethat Phillips would have made for an
opposite-sex couple.In refusing that request, Phillips contravened
CADA’s demand that customers receive "the full and equal enjoyment"
of public accommodations irrespective of their sexual orientation.
Ibid.
The different outcomes in the Jack cases and the Phillips
case could thus have been justified by a plain reading and neutral
application ofColorado law—untainted by any bias against a religious
3 Cite as: 584 U. S. ____ (2018)
KAGAN, J., concurring
belief.*
I
read the Court’s opinion as fully consistent with thatview. The
Court limits its analysis to the
reasoning
of the state agencies (and Court of Appeals)—"quite apart
fromwhether the [Phillips and Jack] cases should ultimately be
distinguished."
Ante, at 15. And the Court itself recognizes the
principle that would properly account for a differencein
result
between those cases. Colorado law, the Court ——————
*
JUSTICE GORSUCH disagrees. In his view, the Jack cases and the
Phillips case must be treated the same because the bakers in all
thosecases "would not sell the requested cakes to anyone."
Post,
at 4. That description perfectly fits the Jack cases—and explains
why the bakers there did not engage in unlawful discrimination. But
it is a surprisingcharacterization of the Phillips case, given that
Phillips routinely sells wedding cakes to opposite-sex couples.
JUSTICE GORSUCH can make the claim only because he does not think a
"wedding cake" is the relevantproduct. As JUSTICE GORSUCH sees it,
the product that Phillips refused to sell here—and would refuse to
sell to anyone—was a "cake celebrating same-sex marriage."
Ibid.;
see post,
at 3, 6, 8–9. But that is wrong.The cake requested was not a special
"cake celebrating same-sexmarriage." It was simply a wedding
cake—one that (like other standard wedding cakes) is suitable for
use at same-sex and opposite-sexweddings alike. See
ante,
at 4 (majority opinion) (recounting thatPhillips did not so much as
discuss the cake’s design before he refusedto make it). And contrary
to JUSTICE GORSUCH’S view, a wedding cakedoes not become something
different whenever a vendor like Phillipsinvests its sale to
particular customers with "religious significance."
Post,
at 11. As this Court has long held, and reaffirms today, a
vendorcannot escape a public accommodations law because his religion
disapproves selling a product to a group of customers, whether
defined by sexual orientation, race, sex, or other protected trait.
See Newman
v.
Piggie Park Enterprises, Inc., 390 U. S. 400, 402, n. 5
(1968) (per
curiam) (holding that a barbeque vendor must serve black
customers even if he perceives such service as vindicating racial
equality, inviolation of his religious beliefs);
ante,
at 9. 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’ religiousbeliefs—Colorado could
have distinguished Phillips from the bakers inthe Jack cases, who
did not engage in any prohibited discrimination. 4 MASTERPIECE
CAKESHOP, LTD.
v. COLORADO CIVIL RIGHTS COMM’N KAGAN, J., concurring
says, "can protect gay persons, just as it can protect otherclasses
of individuals, in acquiring whatever products and services they
choose on the same terms and conditions asare offered to other
members of the public."
Ante,
at 10. For that reason, Colorado can treat a baker who discriminates
based on sexual orientation differently from a baker who does not
discriminate on that or any other prohibitedground. But only, as the
Court rightly says, if the State’s decisions are not infected by
religious hostility or bias. I accordingly concur. _________________
_________________ 1 Cite as: 584 U. S. ____ (2018)
GORSUCH, J., concurring
SUPREME COURT OF THE UNITED STATES
No.
16–111
MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS
v.
COLORADO CIVIL RIGHTS COMMISSION, ET AL.
ON
WRIT OF CERTIORARI TO THE COURT OF APPEALS OF COLORADO
[June 4, 2018]
JUSTICE GORSUCH,
with whom JUSTICE ALITO joins,concurring. In
Employment
Div., Dept. of Human Resources of Ore.
v.
Smith,
this Court held that a neutral and generallyapplicable law will
usually survive a constitutional free exercise challenge. 494 U. S.
872, 878–879 (1990).
Smith
remains controversial in many quarters. CompareMcConnell, The
Origins and Historical Understanding of Free Exercise of Religion,
103 Harv. L. Rev. 1409 (1990),with Hamburger, A Constitutional Right
of ReligiousExemption: An Historical Perspective, 60 Geo. Wash. L.
Rev. 915 (1992). But we know this with certainty: whenthe government
fails to act neutrally toward the free exercise of religion, it
tends to run into trouble. Then the government can prevail only if
it satisfies strict scrutiny, showing that its restrictions on
religion both serve a compelling interest and are narrowly tailored.
Church of
Lukumi Babalu Aye, Inc. v.
Hialeah,
508 U. S. 520, 546 (1993).
Today’s decision respects these principles. As the Court explains,
the Colorado Civil Rights Commission failed to act neutrally toward
Jack Phillips’s religious faith. Maybemost notably, the Commission
allowed three other bakersto refuse a customer’s request that would
have required them to violate their secular commitments. Yet it
denied 2 MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N GORSUCH, J., concurring
the
same accommodation to Mr. Phillips when he refused a customer’s
request that would have required him to violate his religious
beliefs. Ante,
at 14–16. As the Court also explains, the only reason the
Commission seemed to supply for its discrimination was that it found
Mr. Phillips’s religious beliefs "offensive."
Ibid.
That kind of judgmental dismissal of a sincerely held
religious belief is, of course, antithetical to the First Amendment
and cannot begin to satisfy strict scrutiny. The Constitution
protectsnot just popular religious exercises from the condemnation
of civil authorities. It protects them all. Because the Court
documents each of these points carefully and thoroughly, I am
pleased to join its opinion in full.
The
only wrinkle is this. In the face of so much evidence suggesting
hostility toward Mr. Phillips’s sincerely held religious beliefs,
two of our colleagues have written separately to suggest that the
Commission acted neutrally toward his faith when it treated him
differently from the other bakers—or that it could have easily done
so consistent with the First Amendment. See
post,
at 4–5, and
n.
4 (GINSBURG, J., dissenting);
ante,
at 2–3, and n. (KAGAN, J., concurring). But, respectfully, I
do not seehow we might rescue the Commission from its error.
A
full view of the facts helps point the way to the problem. Start
with William Jack’s case. He approached threebakers and asked them
to prepare cakes with messages disapproving same-sex marriage on
religious grounds. App. 233, 243, 252. All three bakers refused Mr.
Jack’s request, stating that they found his request offensive
totheir secular convictions.
Id.,
at 231, 241, 250. Mr. Jack responded by filing complaints with the
Colorado Civil Rights Division.
Id.,
at 230, 240, 249. He pointed toColorado’s Anti-Discrimination Act,
which prohibits discrimination against customers in public
accommodations because of religious creed, sexual orientation, or
certainother traits. See
ibid.;
Colo. Rev. Stat. §24–34–601(2)(a) 3 Cite as: 584 U. S. ____ (2018)
GORSUCH, J., concurring
(2017). Mr. Jack argued that the cakes he sought reflected his
religious beliefs and that the bakers could not refuse tomake them
just because they happened to disagree with his beliefs. App. 231,
241, 250. But the Division declined to find a violation, reasoning
that the bakers didn’t denyMr. Jack service because of his religious
faith but because the cakes he sought were offensive to their own
moralconvictions.
Id., at 237, 247, 255–256. As proof, the Division
pointed to the fact that the bakers said they treatedMr. Jack as
they would have anyone who requested a cake with similar messages,
regardless of their religion.
Id.,
at 230–231, 240, 249.
The Division pointed, as well, to thefact that the bakers
said they were happy to provide religious persons with other cakes
expressing other ideas.
Id.,
at 237, 247, 257. Mr. Jack appealed to the Colorado CivilRights
Commission, but the Commission summarily denied relief. App. to Pet.
for Cert. 326a–331a.
Next, take the undisputed facts of Mr. Phillips’s case. Charlie
Craig and Dave Mullins approached Mr. Phillipsabout creating a cake
to celebrate their wedding. App.
168. Mr. Phillips explained that he could not prepare a cake
celebrating a same-sex wedding consistent with his religious faith.
Id.,
at 168–169.
But Mr. Phillips offered to make other baked goods for
the couple, including cakescelebrating other occasions.
Ibid.
Later, Mr. Phillips testified without contradiction that he
would have refused to create a cake celebrating a same-sex marriage
for anycustomer, regardless of his or her sexual orientation.
Id.,
at 166–167 ("I will not design and create wedding cakes for a
same-sex wedding regardless of the sexual orientation of the
customer"). And the record reveals that Mr. Phillips apparently
refused just such a request from Mr. Craig’s mother.
Id.,
at 38–40, 169. (Any suggestion thatMr. Phillips was willing
to make a cake celebrating asame-sex marriage for a heterosexual
customer or was notwilling to sell other products to a homosexual
customer, 4 MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N GORSUCH, J., concurring
then, would simply mistake the undisputed factual record.See
post,
at 4, n. 2 (GINSBURG, J., dissenting);
ante,
at 2–3, and n. (KAGAN, J., concurring)). Nonetheless, the
Commission held that Mr. Phillips’s conduct violated the Colorado
public accommodations law. App. to Pet. for Cert. 56a–58a.
The
facts show that the two cases share all legally sa- lient features.
In both cases, the effect on the customer was the same: bakers
refused service to persons who bore astatutorily protected trait
(religious faith or sexual orientation). But in both cases the
bakers refused service intending only to honor a personal
conviction. To be sure, the bakers
knew
their conduct promised the effect of leaving a customer in a
protected class unserved. But there’s no indication the bakers
actually
intended to refuse service
because of
a customer’s protected characteristic. We know this because
all of the bakers explained without contradiction that they would
not sell the requested cakesto anyone, while they would sell other
cakes to members of the protected class (as well as to anyone else).
So, for example, the bakers in the first case would have refused to
sell a cake denigrating same-sex marriage to an atheist customer,
just as the baker in the second case would haverefused to sell a
cake celebrating same-sex marriage to aheterosexual 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.
The
distinction between intended and knowingly accepted effects is
familiar in life and law. Often the purposefulpursuit of worthy
commitments requires us to acceptunwanted but entirely foreseeable
side effects: so, for example, choosing to spend time with family
means the foreseeable loss of time for charitable work, just as
optingfor more time in the office means knowingly forgoing time 5
Cite as: 584 U. S. ____ (2018)
GORSUCH, J., concurring
at
home with loved ones. The law, too, sometimes distinguishes between
intended and foreseeable effects. See,
e.g.,
ALI, Model Penal Code §§1.13, 2.02(2)(a)(i) (1985); 1
W.
LaFave, Substantive Criminal Law §5.2(b), pp. 460–463 (3d ed. 2018).
Other times, of course, the law proceeds differently, either
conflating intent and knowledge or presuming intent as a matter of
law from a showing ofknowledge. See,
e.g.,
Restatement (Second) of Torts §8A (1965);
Radio Officers
v.
NLRB, 347 U. S. 17, 45 (1954).
The
problem here is that the Commission failed to act neutrally by
applying a consistent legal rule. In Mr. Jack’s case, the Commission
chose to distinguish carefullybetween intended and knowingly
accepted effects. Even though the bakers knowingly denied service to
someone ina protected class, the Commission found no
violationbecause the bakers only intended to distance themselvesfrom
"the offensive nature of the requested message."
Craig
v.
Masterpiece Cakeshop, Inc., 370 P. 3d 272, 282,
n.
8 (Colo. App. 2015); App. 237, 247, 256; App. to Pet. forCert.
326a–331a; see also Brief for Respondent ColoradoCivil Rights
Commission 52 ("Businesses are entitled toreject orders for any
number of reasons, including because they deem a particular product
requested by a customer tobe ‘offensive’"). Yet, in Mr. Phillips’s
case, the Commission dismissed this very same argument as resting on
a "distinction without a difference." App. to Pet. for Cert.69a. It
concluded instead that an "intent to disfavor" a protected class of
persons should be "readily . . . presumed" from the knowing failure
to serve someone who belongs to that class.
Id.,
at 70a. In its judgment, Mr.Phillips’s intentions were
"inextricably tied to the sexualorientation of the parties involved"
and essentially "irrational."
Ibid.
Nothing in the Commission’s opinions suggests any neutral principle
to reconcile these holdings. If Mr. Phillips’s objection is
"inextricably tied" to a protected class, 6 MASTERPIECE CAKESHOP,
LTD. v.
COLORADO CIVIL RIGHTS COMM’N GORSUCH, J., concurring
then the bakers’ objection in Mr. Jack’s case must be"inextricably
tied" to one as well. For just as cakes celebrating same-sex
weddings are (usually) requested by persons of a particular sexual
orientation, so too are cakes expressing religious opposition to
same-sex weddings (usually) requested by persons of particular
religiousfaiths. In both cases the bakers’ objection would (usually)
result in turning down customers who bear a protected
characteristic. In the end, the Commission’s decisions simply reduce
to this: it
presumed that Mr. Phillip harbored an intent to
discriminate against a protected class inlight of the foreseeable
effects of his conduct, but it declined to presume the same intent
in Mr. Jack’s case even though the effects of the bakers’ conduct
were just as foreseeable. Underscoring the double standard, a state
appellate court said that "no such showing" of actual "animus"—or
intent to discriminate against persons in aprotected class—was even
required in Mr. Phillips’s case. 370 P. 3d, at 282.
The
Commission cannot have it both ways. The Commission cannot slide up
and down the
mens rea scale, picking a mental state standard to suit
its tastes depending on its sympathies. Either actual proof of
intent todiscriminate on the basis of membership in a protected
class is required (as the Commission held in Mr. Jack’scase), or it
is sufficient to "presume" such intent from theknowing failure to
serve someone in a protected class (asthe Commission held in Mr.
Phillips’s case). Perhaps theCommission could have chosen either
course as an initial matter. But the one thing it can’t do is apply
a more generous legal test to secular objections than religious
ones. See
Church of Lukumi Babalu Aye, 508 U. S., at 543–544. That
is anything but the neutral treatment of religion.
The
real explanation for the Commission’s discrimination soon comes
clear, too—and it does anything but help 7 Cite as: 584 U. S. ____
(2018) GORSUCH, J., concurring
its
cause. This isn’t a case where the Commission self-consciously
announced a change in its legal rule in all public accommodation
cases. Nor is this a case where the Commission offered some
persuasive reason for its discrimination that might survive strict
scrutiny. Instead, as the Court explains, it appears the Commission
wished tocondemn Mr. Phillips for expressing just the kind of
"irrational" or "offensive . . . message" that the bakers in the
first case refused to endorse.
Ante,
at 16. Many may agree with the Commission and consider Mr.
Phillips’s religious beliefs irrational or offensive. Some may
believehe misinterprets the teachings of his faith. And, to be sure,
this Court has held same-sex marriage a matter ofconstitutional
right and various States have enacted laws that preclude
discrimination on the basis of sexual orientation. But it is also
true that no bureaucratic judgmentcondemning a sincerely held
religious belief as "irrational"or "offensive" will ever survive
strict scrutiny under theFirst Amendment. In this country, the place
of secularofficials isn’t to sit in judgment of religious beliefs,
but only to protect their free exercise. Just as it is the "proudest
boast of our free speech jurisprudence" that we protectspeech that
we hate, it must be the proudest boast of our free exercise
jurisprudence that we protect religious beliefs that we find
offensive. See
Matal v.
Tam,
582 U. S. ___, ___ (2017) (plurality opinion) (slip op., at 25)
(citing United
States v.
Schwimmer,
279 U. S. 644, 655 (1929) (Holmes, J., dissenting)). Popular
religious views are easy enough to defend. It is in protecting
unpopular religious beliefs that we prove this country’s commitment
to servingas a refuge for religious freedom. See
Church of
Lukumi Babalu Aye, supra, at 547;
Thomas
v.
Review Bd. of Indiana Employment Security Div., 450 U. S.
707, 715–716 (1981);
Wisconsin
v.
Yoder, 406 U. S. 205, 223–224 (1972);
Cantwell
v.
Connecticut, 310 U. S. 296, 308–310 (1940).
Nor can any amount of after-the-fact maneuvering by 8
MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N GORSUCH, J., concurring
our colleagues save the Commission. It is no answer, for
example, to observe that Mr. Jack requested a cake withtext on
it while Mr. Craig and Mr. Mullins sought a cakecelebrating
their wedding without discussing its decoration, and then
suggest this distinction makes all the difference. See
post,
at 4–5, and n. 4 (GINSBURG, J., dissenting). It is no
answer either simply to slide up a level ofgenerality to
redescribe Mr. Phillips’s case as involving only a wedding cake
like any other, so the fact that Mr. Phillips would make one for
some means he must make them for all. See
ante,
at 2–3, and n. (KAGAN, J., concurring). These arguments,
too, fail to afford Mr. Phillips’s faith neutral respect.
Take the first suggestion first. To suggest that cakes with words
convey a message but cakes without words do not—all in order to
excuse the bakers in Mr. Jack’s case while penalizing Mr.
Phillips—is irrational. Not even the Commission or court of appeals
purported to rely on thatdistinction. Imagine Mr. Jack asked only
for a cake with asymbolic expression against same-sex marriage
rather than a cake bearing words conveying the same idea. Surely the
Commission would have approved the bakers’ intentional wish to avoid
participating in that message too. Nor can anyone reasonably doubt
that a weddingcake 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. See 370 P. 3d, at 276 (stating that Mr. Craig and Mr.
Mullins "requested that Phillipsdesign and create a
cake to
celebrate their same-sex wedding") (emphasis added). Like
"an emblem or flag," a cake for a same-sex wedding is a symbol that
serves as "a short cut from mind to mind," signifying approval of a
specific "system, idea, [or] institution."
West Virginia
Bd. of Ed. v.
Barnette,
319 U. S. 624, 632 (1943). It is precisely that approval that Mr.
Phillips intended to withhold in keeping 9 Cite as: 584 U. S. ____
(2018)
GORSUCH, J., concurring
with his religious faith. 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 theydeemed offensive to their secular
commitments. That is not neutral.
Nor
would it be proper for this or any court to suggest that a person
must be forced to write words rather thancreate a symbol before his
religious faith is implicated. Civil authorities, whether "high or
petty," bear no licenseto declare what is or should be "orthodox"
when it comes to religious beliefs,
id.,
at 642, or whether an adherent has "correctly perceived" the
commands of his religion,
Thomas, supra,
at 716. Instead, it is our job to look beyond the
formality of written words and afford legal protection toany sincere
act of faith. See generally
Hurley
v.
Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.,
515 U. S. 557, 569 (1995) ("[T]he Constitution looksbeyond written
or spoken words as mediums of ex- pression," which are "not a
condition of constitutional protection").
The
second suggestion fares no better. Suggesting thatthis case is only
about "wedding cakes"—and not a wedding cake celebrating a same-sex
wedding—actually pointsup the problem. At its most general level,
the cake at issue in Mr. Phillips’s case was just a mixture of flour
and eggs; at its most specific level, it was a cake celebrating the
same-sex wedding of Mr. Craig and Mr. Mullins. We are told here,
however, to apply a sort of Goldilocks rule:describing the cake by
its ingredients is
too general;
understanding it as celebrating a same-sex wedding is
too specific;
but regarding it as a generic wedding cake is
just right.
The problem is, the Commission didn’t play with the level of
generality in Mr. Jack’s case in this way. It didn’t declare, for
example, that because the cakes Mr. Jack requested were just cakes
about weddings generally, and all such cakes were the same, the
bakers had to pro10 MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N GORSUCH, J., concurring
duce them. Instead, the Commission accepted the bakers’ view that
the specific cakes Mr. Jack requested conveyed amessage offensive to
their convictions and allowed them torefuse service. Having done
that there, it must do the same here.
Any
other conclusion would invite civil authorities togerrymander their
inquiries based on the parties they prefer. Why calibrate the level
of generality in Mr. Phillips’s case at "wedding cakes" exactly—and
not at, say,"cakes" more generally or "cakes that convey a
messageregarding same-sex marriage" more specifically? If "cakes"
were the relevant level of generality, the Commission would have to
order the bakers to make Mr. Jack’s requested cakes just as it
ordered Mr. Phillips to make the requested cake in his case.
Conversely, if "cakes thatconvey a message regarding same-sex
marriage" were therelevant level of generality, the Commission would
have torespect Mr. Phillips’s refusal to make the requested cakejust
as it respected the bakers’ refusal to make the cakes Mr. Jack
requested. In short, when the same level of generality is applied to
both cases, it is no surprise thatthe bakers have to be treated the
same. Only by adjustingthe dials
just right—fine-tuning
the level of generality up or down for each case based solely on the
identity of the parties and the substance of their views—can you
engineer the Commission’s outcome, handing a win to Mr.Jack’s bakers
but delivering a loss to Mr. Phillips. Such results-driven reasoning
is improper. Neither the Commission nor this Court may apply a more
specific level ofgenerality in Mr. Jack’s case (a cake that conveys
a message regarding same-sex marriage) while applying a higherlevel
of generality in Mr. Phillips’s case (a cake thatconveys no message
regarding same-sex marriage). Of course, under
Smith
a vendor cannot escape a public accommodations law just
because his religion frowns on it. But for any law to comply with
the First Amendment and 11 Cite as: 584 U. S. ____ (2018)
GORSUCH, J., concurring
Smith , it must be applied in a manner that treats
religion with neutral respect. That means the government must apply
the same
level of generality across cases—and thatdid not happen here.
There is another problem with sliding up the generality scale: it
risks denying constitutional protection to religious beliefs that
draw distinctions more specific than the government’s preferred
level of description. To some, all wedding cakes may appear
indistinguishable. But
to Mr.
Phillips that is not the case—his faith teaches him
otherwise. And his religious beliefs are entitled to no
lessrespectful treatment than the bakers’ secular beliefs inMr.
Jack’s case. This Court has explained these same points
"[r]epeatedly and in many different contexts" over many years.
Smith,
494 U. S. at 887. For example, in
Thomas
a faithful Jehovah’s Witness and steel mill worker agreed to
help manufacture sheet steel he knew might find its way into
armaments, but he was unwilling to workon a fabrication line
producing tank turrets. 450 U. S., at
711. Of course, the line Mr. Thomas drew wasn’t the same many others
would draw and it wasn’t even the same line many other members of
the same faith would draw. Even so, the Court didn’t try to suggest
that making steel is just making steel. Or that to offend his
religion the steel needed to be of a particular kind or shape.
Instead, it recognized that Mr. Thomas alone was entitled to
definethe nature of his religious commitments—and that
thosecommitments, as defined by the faithful adherent, not
abureaucrat or judge, are entitled to protection under theFirst
Amendment.
Id., at 714–716; see also
United States
v.
Lee,
455 U. S. 252, 254–255 (1982);
Smith,
supra,
at 887 (collecting authorities). 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 thereligious
significance his faith may attach to it—than it would be for the
Court to suggest that for all persons 12 MASTERPIECE CAKESHOP, LTD.
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COLORADO CIVIL RIGHTS COMM’N GORSUCH, J., concurring
sacramental bread is
just
bread or a kippah is
just
a cap.
Only one way forward now remains. Having failed toafford Mr.
Phillips’s religious objections neutral consideration and without
any compelling reason for its failure, the Commission must afford
him the same result it afforded the bakers in Mr. Jack’s case. The
Court recognizes this by reversing the judgment below and holding
that theCommission’s order "must be set aside."
Ante,
at 18. Maybe in some future rulemaking or case the Commission
could adopt a new "knowing" standard for all refusals of service and
offer neutral reasons for doing so. But, as the Court observes,
"[h]owever later cases raising these or similar concerns are
resolved in the future, . . . the rulings of the Commission and of
the state court that enforced the Commission’s order" in
this
case "must be invalidated."
Ibid.
Mr. Phillips has conclusively proven a First Amendment violation
and, after almost six years facing unlawful civil charges, he is
entitled to judgment. _________________ _________________ 1 Cite as:
584 U. S. ____ (2018)
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
No.
16–111
MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS
v.
COLORADO CIVIL RIGHTS COMMISSION, ET AL.
ON
WRIT OF CERTIORARI TO THE COURT OF APPEALS OF COLORADO
[June 4, 2018]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,concurring in part
and concurring in the judgment.
I
agree that the Colorado Civil Rights Commission (Commission)
violated Jack Phillips’ right to freely exercise his religion. As
JUSTICE GORSUCH explains, theCommission treated Phillips’ case
differently from a similar case involving three other bakers, for
reasons that canonly be explained by hostility toward Phillips’
religion. See
ante, at 2–7 (concurring opinion). The Court agreesthat
the Commission treated Phillips differently, and it points out that
some of the Commissioners made comments disparaging Phillips’
religion. See
ante, at 12–16. Although the Commissioners’ comments are
certainlydisturbing, the discriminatory application of
Colorado’spublic-accommodations law is enough on its own to
violatePhillips’ rights. To the extent the Court agrees, I join
itsopinion.
While Phillips rightly prevails on his free-exercise claim,I write
separately to address his free-speech claim. The Court does not
address this claim because it has some uncertainties about the
record. See
ante, at 2. Specifically,the parties dispute whether
Phillips refused to create a
custom
wedding cake for the individual respondents, or whether he
refused to sell them
any
wedding cake (including a premade one). But the Colorado
Court of Appeals 2 MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N Opinion of THOMAS, J.
resolved this factual dispute in Phillips’ favor. The court
described his conduct as a refusal to "design and create a cake to
celebrate [a] same-sex wedding."
Craig
v.
Masterpiece Cakeshop, Inc., 370 P. 3d 272, 276 (2015);
see also id.,
at 286 ("designing and selling a wedding cake");
id.,
at 283 ("refusing to create a wedding cake"). And it noted
that the Commission’s order required Phillips to sell "‘anyproduct
[he] would sell to heterosexual couples,’ " including custom wedding
cakes. Id.,
at 286 (emphasis added).
Even after describing his conduct this way, the Court ofAppeals
concluded that Phillips’ conduct was not expressive and was not
protected speech. It reasoned that an outside observer would think
that Phillips was merely complying with Colorado’s
public-accommodations law, not expressing a message, and that
Phillips could post a disclaimer to that effect. This reasoning
flouts bedrock principles of our free-speech jurisprudence and would
justifyvirtually any law that compels individuals to speak. It
should not pass without comment.
I The First
Amendment, applicable to the States throughthe Fourteenth Amendment,
prohibits state laws thatabridge the "freedom of speech." When
interpreting thiscommand, this Court has distinguished between
regulations of speech and regulations of conduct. The latter
generally do not abridge the freedom of speech, even ifthey impose
"incidental burdens" on expression.
Sorrell
v. IMS
Health Inc., 564 U. S. 552, 567 (2011). As the Court
explains today, public-accommodations laws usually regulate conduct.
Ante,
at 9–10 (citing
Hurley
v.
Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.,
515 U. S. 557, 572 (1995)). "[A]s a general matter,"
public-accommodations laws do not "target speech" butinstead
prohibit "the
act of discriminating against individuals in the
provision of publicly available goods, privileges, 3 Cite as: 584 U.
S. ____ (2018)
Opinion of THOMAS, J.
and
services."
Id., at 572 (emphasis added).
Although public-accommodations laws generally regulate conduct,
particular applications of them can burden protected speech. When a
public-accommodations law "ha[s] the effect of declaring . . .
speech itself to be thepublic accommodation," the First Amendment
applies withfull force.
Id.,
at 573; accord,
Boy Scouts of America v.
Dale,
530 U. S. 640, 657–659 (2000). In
Hurley,
for example, a Massachusetts public-accommodations law prohib- ited
"‘any distinction, discrimination or restriction on account of . . .
sexual orientation . . . relative to the admission of any person to,
or treatment in any place of publicaccommodation.’" 515 U. S.,
at 561 (quoting Mass. Gen.Laws §272:98 (1992); ellipsis
in original). When this law required the sponsor of a St. Patrick’s
Day parade toinclude a parade unit of gay, lesbian, and bisexual
Irish-Americans, the Court unanimously held that the law violated
the sponsor’s right to free speech. Parades are "a form of
expression," this Court explained, and the application of the
public-accommodations law "alter[ed] the expressive content" of the
parade by forcing the sponsor to add a new unit. 515 U. S., at 568,
572–573. The addition of that unit compelled the organizer to "bear
witness to thefact that some Irish are gay, lesbian, or bisexual";
"suggest . . . that people of their sexual orientation have as
muchclaim to unqualified social acceptance as heterosexuals";and
imply that their participation "merits celebration."
Id.,
at 574. While this Court acknowledged that the
unit’sexclusion might have been "misguided, or even hurtful,"
ibid.,
it rejected the notion that governments can mandate"thoughts and
statements acceptable to some groups or,indeed, all people" as the
"antithesis" of free speech,
id.,
at 579; accord,
Dale,
supra,
at 660–661.
The
parade in
Hurley was an example of what thisCourt has termed
"expressive conduct." See 515 U. S., at 568–569. This Court has long
held that "the Constitution 4 MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N Opinion of THOMAS, J.
looks beyond written or spoken words as mediums ofexpression,"
id.,
at 569, and that "[s]ymbolism is a primitive but effective way of
communicating ideas,"
West Virginia
Bd. of Ed. v.
Barnette,
319 U. S. 624, 632 (1943).Thus, a person’s "conduct may be
‘sufficiently imbued withelements of communication to fall within
the scope of theFirst and Fourteenth Amendments.’"
Texas
v.
Johnson, 491 U. S. 397, 404 (1989). Applying this
principle, theCourt has recognized a wide array of conduct that
canqualify as expressive, including nude dancing, burning the
American flag, flying an upside-down American flag witha taped-on
peace sign, wearing a military uniform, wearing a black armband,
conducting a silent sit-in, refusing to salute the American flag,
and flying a plain red flag.1
Of
course, conduct does not qualify as protected speechsimply because
"the person engaging in [it] intends therebyto express an idea."
United States
v.
O’Brien, 391 U. S. 367, 376 (1968). To determine whether
conduct is sufficiently expressive, the Court asks whether it was
"intendedto be communicative" and, "in context, would reasona- bly
be understood by the viewer to be communicative."
Clark
v.
Community for Creative Non-Violence, 468 U. S. 288, 294
(1984). But a "‘particularized message’" is not required, or else
the freedom of speech "would never reachthe unquestionably shielded
painting of Jackson Pollock,music of Arnold Schöenberg, or
Jabberwocky verse of Lewis Carroll."
Hurley,
515 U. S., at 569.
Once a court concludes that conduct is expressive, the
—————— 1
Barnes
v.
Glen Theatre, Inc., 501 U. S. 560, 565–566 (1991);
Texas
v.
Johnson, 491 U. S. 397, 405–406 (1989);
Spence
v.
Washington, 418
U.
S. 405, 406, 409–411 (1974) (per
curiam);
Schacht
v.
United States, 398 U. S. 58, 62–63 (1970);
Tinker
v. Des
Moines Independent Community School Dist., 393 U. S. 503,
505–506 (1969);
Brown v.
Louisiana,
383 U. S. 131, 141–142 (1966) (opinion of Fortas, J.);
West Virginia
Bd. of Ed. v.
Barnette,
319 U. S. 624, 633–634 (1943);
Stromberg
v.
California, 283 U. S. 359, 361, 369 (1931). 5 Cite as:
584 U. S. ____ (2018) Opinion of THOMAS, J.
Constitution limits the government’s authority to restrictor compel
it. "[O]ne important manifestation of the principle of free speech
is that one who chooses to speak may also decide ‘what not to say’"
and "tailor" the content of his message as he sees fit.
Id.,
at 573 (quoting
Pacific Gas &
Elec. Co. v.
Public Util.
Comm’n of Cal., 475 U. S. 1, 16 (1986) (plurality
opinion)). This rule "applies not only to expressions of value,
opinion, or endorsement, but equally to statements of fact the
speaker would rather avoid."
Hurley,
supra,
at 573. And it "makes no difference" whether the government is
regulating the "creati[on],distributi[on], or consum[ption]" of the
speech. Brown
v.
Entertainment Merchants Assn., 564 U. S. 786, 792, n. 1
(2011).
II A
The
conduct that the Colorado Court of Appeals ascribed to
Phillips—creating and designing custom weddingcakes—is expressive.
Phillips considers himself an artist. The logo for Masterpiece
Cakeshop is an artist’s paint palate with a paintbrush and baker’s
whisk. Behind the counter Phillips has a picture that depicts him as
an artist painting on a canvas. Phillips takes exceptional care
witheach cake that he creates—sketching the design out onpaper,
choosing the color scheme, creating the frosting anddecorations,
baking and sculpting the cake, decorating it,and delivering it to
the wedding. Examples of his creations can be seen on Masterpiece’s
website. See http://masterpiececakes.com/wedding-cakes (as last
visited June 1, 2018).
Phillips is an active participant in the wedding celebration. He
sits down with each couple for a consultationbefore he creates their
custom wedding cake. He discusses their preferences, their
personalities, and the details oftheir wedding to ensure that each
cake reflects the couple 6 MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N Opinion of THOMAS, J.
who
ordered it. In addition to creating and delivering the cake—a focal
point of the wedding celebration—Phillips sometimes stays and
interacts with the guests at the wedding. And the guests often
recognize his creations and seek his bakery out afterward. Phillips
also sees the inherent symbolism in wedding cakes. To him, a wedding
cake inherently communicates that "a wedding has occurred, a
marriage has begun, and the couple should be celebrated." App. 162.
Wedding cakes do, in fact, communicate this message.A tradition from
Victorian England that made its way to America after the Civil War,
"[w]edding cakes are so packed with symbolism that it is hard to
know where tobegin." M. Krondl, Sweet Invention: A History of
Dessert 321 (2011) (Krondl); see also
ibid.
(explaining the symbolism behind the color, texture, flavor,
and cutting of thecake). If an average person walked into a room and
saw awhite, multi-tiered cake, he would immediately know that he had
stumbled upon a wedding. The cake is "so standardised and inevitable
a part of getting married that few ever think to question it."
Charsley, Interpretation and Custom: The Case of the Wedding Cake,
22 Man 93, 95(1987). Almost no wedding, no matter how spartan,
ismissing the cake. See
id.,
at 98. "A whole series of events expected in the context of a
wedding would be impossiblewithout it: an essential photograph, the
cutting, the toast,and the distribution of both cake and favours at
the wedding and afterwards."
Ibid.
Although the cake is eventually eaten, that is not its
primary purpose. See
id.,
at 95 ("It is not unusual to hear people declaring that they
do not like wedding cake, meaning that they do not like to eat it.
This includes people who are, without question, havingsuch cakes for
their weddings");
id., at 97 ("Nothing is made of the eating itself ");
Krondl 320–321 (explaining that wedding cakes have long been
described as "inedible"). The cake’s purpose is to mark the
beginning of a 7 Cite as: 584 U. S. ____ (2018)
Opinion of THOMAS, J.
new marriage and to
celebrate the couple.2
Accordingly, Phillips’ creation of custom wedding cakesis
expressive. The use of his artistic talents to create a
well-recognized symbol that celebrates the beginning of amarriage
clearly communicates a message—certainly more so than nude dancing,
Barnes
v. Glen
Theatre, Inc., 501 U. S. 560, 565–566 (1991), or flying a
plain red flag,
Stromberg v.
California,
283 U. S. 359, 369 (1931).3 Byforcing Phillips to create custom
wedding cakes for same
—————— 2The
Colorado Court of Appeals acknowledged that "a wedding cake, in
some circumstances, may convey a particularized message
celebrating same-sex marriage," depending on its "design" and
whether it has "written inscriptions."
Craig
v.
Masterpiece Cakeshop, Inc., 370 P. 3d 272, 288
(2015). But a wedding cake needs no particular design orwritten
words to communicate the basic message that a wedding
isoccurring, a marriage has begun, and the couple should be
celebrated.Wedding cakes have long varied in color, decorations,
and style, but those differences do not prevent people from
recognizing wedding cakes as wedding cakes. See Charsley,
Interpretation and Custom: The Caseof the Wedding Cake, 22 Man
93, 96 (1987). And regardless, theCommission’s order does not
distinguish between plain wedding cakes and wedding cakes with
particular designs or inscriptions; it requiresPhillips to make
any wedding cake for a same-sex wedding that he would make for
an opposite-sex wedding. 3The dissent faults Phillips for not
"submitting . . . evidence" that wedding cakes communicate a
message.
Post, at 2, n. 1 (opinion of GINSBURG, J.). But this
requirement finds no support in our precedents. This Court did
not insist that the parties submit evidence detailing the
expressive nature of parades, flags, or nude dancing. See
Hurley
v.
Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.,
515 U. S. 557, 568–570 (1995);
Spence,
418 U. S., at 410–411;
Barnes,
501 U. S., at 565–566. And we do not need extensive evidence
here to conclude that Phillips’ artistry is expressive, see
Hurley,
515
U.
S., at 569, or that wedding cakes at least communicate the basic
factthat "this is a wedding," see
id.,
at 573–575. Nor does it matter that the couple also
communicates a message through the cake. More than one person can be
engaged in protected speech at the same time. See
id.,
at 569–570. And by forcing him to provide the cake, Colorado
isrequiring Phillips to be "intimately connected" with the couple’s
speech, which is enough to implicate his First Amendment rights. See
id.,
at
576. 8 MASTERPIECE
CAKESHOP, LTD.
v. COLORADO CIVIL RIGHTS COMM’N Opinion of THOMAS, J.
sex
weddings, Colorado’s public-accommodations law "alter[s] the
expressive content" of his message.
Hurley,
515 U. S., at 572. The meaning of expressive conduct, thisCourt has
explained, depends on "the context in which it occur[s]."
Johnson,
491 U. S., at 405. Forcing Phillips tomake 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 faithforbids. The
First Amendment prohibits Colorado fromrequiring Phillips to "bear
witness to [these] fact[s],"
Hurley,
515 U. S., at 574, or to "affir[m] . . . a belief withwhich [he]
disagrees,"
id., at 573.
B The Colorado
Court of Appeals nevertheless concludedthat Phillips’ conduct was
"not sufficiently expressive" to be protected from state compulsion.
370 P. 3d, at 283. It noted that a reasonable observer would not
view Phillips’ conduct as "an endorsement of same-sex marriage," but
rather as mere "compliance" with Colorado’s public-accommodations
law. Id.,
at 286–287 (citing
Rumsfeld
v.
Forum for Academic and Institutional Rights, Inc., 547
U.
S. 47, 64–65 (2006) (FAIR);
Rosenberger
v.
Rector and Visitors of Univ. of Va., 515 U. S. 819,
841–842 (1995);
PruneYard Shopping Center v.
Robins,
447 U. S. 74, 76–78 (1980)). It also emphasized that Masterpiece
could "disassociat[e]" itself from same-sex marriage by posting a
"disclaimer" stating that Colorado law "requires it not
todiscriminate" or that "the provision of its services does not
constitute an endorsement." 370 P. 3d, at 288. This reasoning is
badly misguided.
1 The Colorado
Court of Appeals was wrong to concludethat Phillips’ conduct was not
expressive because a rea9 Cite as: 584 U. S. ____ (2018)
Opinion of THOMAS, J.
sonable observer would think he is merely complying with Colorado’s
public-accommodations law. This argument would justify any law that
compelled protected speech. And, this Court has never accepted it.
From the beginning, this Court’s compelled-speech precedents have
rejected arguments that "would resolve every issue of power in favor
of those in authority."
Barnette,
319 U. S., at 636.
Hurley,
for example, held that the application of Massachusetts’
public-accommodations law "requir[ed] [theorganizers] to alter the
expressive content of their parade." 515 U. S., at 572–573. It did
not hold that reasonable observers would view the organizers as
merely complying with Massachusetts’ public-accommodations law.
The
decisions that the Colorado Court of Appeals citedfor this
proposition are far afield. It cited three decisions where groups
objected to being forced to provide a forumfor a third party’s
speech. See
FAIR,
supra, at 51 (lawschool refused to allow military
recruiters on campus);
Rosenberger,
supra,
at 822–823 (public university refusedto provide funds to a religious
student paper);
PruneYard,
supra,
at 77 (shopping center refused to allow individuals to collect
signatures on its property). In those decisions, this Court rejected
the argument that requiring the groups to provide a forum for
third-party speech also required them to endorse that speech. See
FAIR,
supra,
at 63–65;
Rosenberger,
supra,
at 841–842;
PruneYard,
supra,
at 85–88. But these decisions do not suggest that the government can
force speakers to alter their
own
message.See
Pacific Gas &
Elec., 475 U. S., at 12 ("Notably absent from
PruneYard
was any concern that access . . . might affect the shopping
center owner’s exercise of his own right to speak");
Hurley,
supra,
at 580 (similar).
The
Colorado Court of Appeals also noted that Masterpiece is a
"for-profit bakery" that "charges its customers." 370 P. 3d, at 287.
But this Court has repeatedly rejected the notion that a speaker’s
profit motive gives the gov10 MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N Opinion of THOMAS, J.
ernment a freer hand in compelling speech. See
Pacific Gas &
Elec.,
supra, at 8, 16 (collecting cases);
Virginia Bd.
of Pharmacy v.
Virginia
Citizens Consumer Council, Inc., 425 U. S. 748, 761
(1976) (deeming it "beyond serious dispute" that "[s]peech . . . is
protected even though it is carried in a form that is ‘sold’ for
profit"). Further, even assuming that most for-profit companies
prioritize maximizing profits over communicating a message, that is
nottrue for Masterpiece Cakeshop. Phillips routinely sacri-fices
profits to ensure that Masterpiece operates in a waythat represents
his Christian faith. He is not open on Sundays, he pays his
employees a higher-than-average wage, and he loans them money in
times of need. Phillipsalso refuses to bake cakes containing
alcohol, cakes with racist or homophobic messages, cakes criticizing
God, and cakes celebrating Halloween—even though Halloween isone of
the most lucrative seasons for bakeries. These efforts to exercise
control over the messages that Masterpiece sends are still more
evidence that Phillips’ conduct isexpressive. See
Miami Herald
Publishing Co. v.
Tornillo,
418 U. S. 241, 256–258 (1974);
Walker
v.
Texas Div., Sons of Confederate Veterans, Inc., 576 U. S.
___, ___ (2015) (slip op., at 15).
2 The Colorado
Court of Appeals also erred by suggesting that Phillips could simply
post a disclaimer, disassociating Masterpiece from any support for
same-sex marriage. Again, this argument would justify any law
compelling speech. And again, this Court has rejected it. We have
described similar arguments as "beg[ging] the core question."
Tornillo,
supra,
at 256. Because the government cannot compel speech, it also cannot
"require speakers toaffirm in one breath that which they deny in the
next." Pacific
Gas & Elec., 475 U. S., at 16; see also
id.,
at 15,
n.
11 (citing
PruneYard, 447 U. S., at 99 (Powell, J., con11 Cite as:
584 U. S. ____ (2018)
Opinion of THOMAS, J.
curring in part and concurring in judgment)). States cannot put
individuals to the choice of "be[ing] compelledto affirm someone
else’s belief " or "be[ing] forced to speak when [they] would prefer
to remain silent."
Id.,
at 99.
III Because
Phillips’ conduct (as described by the Colorado Court of Appeals)
was expressive, Colorado’s public-accommodations law cannot penalize
it unless the lawwithstands strict scrutiny. Although this Court
sometimes reviews regulations of expressive conduct under the more
lenient test articulated in
O’Brien,4
that test does not apply unless the government would have punished
the conduct regardless of its expressive component. See,
e.g., Barnes,
501 U. S., at 566–572 (applying
O’Brien
to evaluate the application of a general nudity ban to nude
dancing);
Clark, 468 U. S., at 293 (applying
O’Brien
to evaluate the application of a general camping ban to a
demonstration in the park). Here, however, Colorado would not be
punishing Phillips if he refused to create any custom wedding cakes;
it is punishing him because he refuses tocreate custom wedding cakes
that express approval ofsame-sex marriage. In cases like this one,
our precedents demand "‘the most exacting scrutiny.’"
Johnson,
491
U.
S., at 412; accord,
Holder
v.
Humanitarian Law Project, 561 U. S. 1, 28 (2010).
The
Court of Appeals did not address whether Colorado’s law survives
strict scrutiny, and I will not do so inthe first instance. There is
an obvious flaw, however, with
—————— 4"[A]
government regulation [of expressive conduct] is
sufficientlyjustified if it is within the constitutional power
of the Government; if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated
to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater
than is essential to the furtherance of thatinterest."
United
States v.
O’Brien,
391 U. S. 367, 377 (1968). 12 MASTERPIECE CAKESHOP, LTD.
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COLORADO CIVIL RIGHTS COMM’N Opinion of THOMAS, J.
one
of the asserted justifications for Colorado’s law. According to the
individual respondents, Colorado can compel Phillips’ speech to
prevent him from "‘denigrat[ing] the dignity’" of same-sex couples,
"‘assert[ing] [their] inferior- ity,’" and subjecting them to
"‘humiliation, frustration, and embarrassment.’" Brief for
Respondents Craig et al. 39 (quoting
J. E. B.
v.
Alabama ex rel. T. B., 511 U. S. 127, 142 (1994);
Heart of
Atlanta Motel, Inc. v.
United States,
379 U. S. 241, 292 (1964) (Goldberg, J., concurring)).These
justifications are completely foreign to our free-speech
jurisprudence.
States cannot punish protected speech because somegroup finds it
offensive, hurtful, stigmatic, unreasonable, or undignified. "If
there is a bedrock principle underlyingthe First Amendment, it is
that the government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or
disagreeable."
Johnson,
supra,
at 414. A contrary rule would allow the government to stamp out
virtually any speech at will. See
Morse
v.
Frederick,
551 U. S. 393, 409 (2007) ("After all, muchpolitical and religious
speech might be perceived as offensive to some"). As the Court
reiterates today, "it is not . . .the role of the State or its
officials to prescribe what shallbe offensive."
Ante,
at 16. "‘Indeed, if it is the speaker’s opinion that gives
offense, that consequence is a reason for according it
constitutional protection.’"
Hustler
Magazine, Inc. v.
Falwell,
485 U. S. 46, 55 (1988); accord,
Johnson,
supra,
at 408–409. If the only reason a public-accommodations law regulates
speech is "to produce a society free of . . . biases" against the
protected groups, that purpose is "decidedly fatal" to the law’s
constitutionality, "for it amounts to nothing less than a proposal
to limit speech in the service of orthodox expression."
Hurley,
515 U. S., at 578–579; see also
United States
v.
Playboy Entertainment Group, Inc., 529 U. S. 803, 813
(2000) ("Where the designed benefit of a content-based speech 13
Cite as: 584 U. S. ____ (2018)
Opinion of THOMAS, J.
restriction is to shield the sensibilities of listeners, the general
rule is that the right of expression prevails"). "[A]speech burden
based on audience reactions is simply government hostility . . . in
a different guise."
Matal
v. Tam,
582 U. S. ___, ___ (2017) (KENNEDY, J., concurring inpart and
concurring in judgment) (slip op., at 4).
Consider what Phillips actually said to the individualrespondents in
this case. After sitting down with them for a consultation, Phillips
told the couple, "‘I’ll make yourbirthday cakes, shower cakes, sell
you cookies and brownies, I just don’t make cakes for same sex
weddings.’" App.
168. It is hard to see how this statement stigmatizes gaysand
lesbians more than blocking them from marching in acity parade,
dismissing them from the Boy Scouts, orsubjecting them to signs that
say "God Hates Fags"—all of which this Court has deemed protected by
the First Amendment. See
Hurley,
supra,
at 574–575;
Dale, 530
U.
S., at 644;
Snyder v.
Phelps,
562 U. S. 443, 448 (2011).Moreover, it is also hard to see how
Phillips’ statement isworse than the racist, demeaning, and even
threateningspeech toward blacks that this Court has tolerated
inprevious decisions. Concerns about "dignity" and "stigma" did not
carry the day when this Court affirmed the right ofwhite
supremacists to burn a 25-foot cross,
Virginia
v.
Black, 538 U. S. 343 (2003); conduct a rally on
MartinLuther King Jr.’s birthday,
Forsyth County
v.
Nationalist Movement, 505 U. S. 123 (1992); or circulate
a film featuring hooded Klan members who were brandishing weapons
and threatening to "‘Bury the niggers,’"
Brandenburg
v.
Ohio, 395 U. S. 444, 446, n. 1 (1969) (per
curiam).
Nor
does the fact that this Court has now decided
Obergefell
v.
Hodges, 576 U. S. ___ (2015), somehow diminish Phillips’
right to free speech. "It is one thing . . . to conclude that the
Constitution protects a right to same-sexmarriage; it is something
else to portray everyone who does not share [that view] as bigoted"
and unentitled to 14 MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N Opinion of THOMAS, J.
express a different view.
Id.,
at ___ (ROBERTS, C. J., dissenting) (slip op., at 29). This Court is
not an authority onmatters of conscience, and its decisions can (and
oftenshould) be criticized. The First Amendment gives individuals
the right to disagree about the correctness of
Obergefell
and the morality of same-sex marriage.
Obergefell
itself emphasized that the traditional understanding of
marriage "long has been held—and continues to be held—in good faith
by reasonable and sincere people here and throughout the world."
Id.,
at ___ (majority opinion) (slip op., at 4). If Phillips’ continued
adherence to that understanding makes him a minority after
Obergefell,
that is all the more reason to insist that his speech be protected.
See Dale,
supra,
at 660 ("[T]he fact that [the social acceptanceof homosexuality] may
be embraced and advocated byincreasing numbers of people is all the
more reason toprotect the First Amendment rights of those who wish
to voice a different view").
* * * In
Obergefell,
I warned that the Court’s decision would "inevitabl[y] . . . come
into conflict" with religious liberty,"as individuals . . . are
confronted with demands to participate in and endorse civil
marriages between same-sexcouples." 576 U. S., at ___ (dissenting
opinion) (slip op., at 15). This case proves that the conflict has
already emerged. Because the Court’s decision vindicates Phillips’
right to free exercise, it seems that religious liberty has lived to
fight another day. But, in future cases, the freedom of speech could
be essential to preventing
Obergefellfrom
being used to "stamp out every vestige of dissent" and "vilify
Americans who are unwilling to assent to the new orthodoxy."
Id.,
at ___ (ALITO, J., dissenting) (slip op., at 6). If that
freedom is to maintain its vitality, reasoninglike the Colorado
Court of Appeals’ must be rejected. _________________
_________________ Cite as: 584 U. S. ____ (2018) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
No.
16–111
MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS
v.
COLORADO CIVIL RIGHTS COMMISSION, ET AL.
ON
WRIT OF CERTIORARI TO THE COURT OF APPEALS OF COLORADO
[June 4, 2018]
JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR joins, dissenting.
There is much in the Court’s opinion with which I agree."[I]t is a
general rule that [religious and philosophical] objections do not
allow business owners and other actors in the economy and in society
to deny protected persons equal access to goods and services under a
neutral and generally applicable public accommodations law."
Ante,
at
9.
"Colorado law can protect gay persons, just as it can protect other
classes of individuals, in acquiring whateverproducts and services
they choose on the same terms and conditions as are offered to other
members of the public."
Ante,
at 10. "[P]urveyors of goods and services who objectto gay
marriages for moral and religious reasons [may not] put up signs
saying ‘no goods or services will be sold if they will be used for
gay marriages.’ "
Ante, at 12. Gaypersons may be spared from
"indignities when they seekgoods and services in an open market."
Ante,
at 18.1 I
—————— 1As
JUSTICE THOMAS observes, the Court does not hold that wedding
cakes are speech or expression entitled to First Amendment
protection.See
ante,
at 1 (opinion concurring in part and concurring in
judgment).Nor could it, consistent with our First Amendment
precedents. JUSTICE THOMAS acknowledges that for conduct to
constitute protected expression, the conduct must be reasonably
understood by an observer to becommunicative.
Ante,
at 4 (citing
Clark
v.
Community for Creative 2 MASTERPIECE CAKESHOP, LTD. v.
COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting
strongly disagree,
however, with the Court’s conclusion that Craig and Mullins should
lose this case. All of the above-quoted statements point in the
opposite direction.
The Court concludes
that "Phillips’ religious objection was not considered with the
neutrality that the FreeExercise Clause requires."
Ante,
at 17. This conclusion rests on evidence said to show the
Colorado Civil Rights Commission’s (Commission) hostility to
religion. Hostilityis discernible, the Court maintains, from the
asserted "disparate consideration of Phillips’ case compared to
thecases of " three other bakers who refused to make cakes requested
by William Jack, an
amicus
here.
Ante, at 18. The Court also finds hostility in statements
made at two public hearings on Phillips’ appeal to the Commission.
Ante,
at 12–14. The different outcomes the Court features
——————
Non-Violence,
468 U. S. 288, 294 (1984)). The record in this case is replete with
Jack Phillips’ own views on the messages he believes hiscakes
convey. See
ante, at 5–6 (THOMAS, J., concurring in part and
concurring in judgment) (describing how Phillips "considers" and
"sees"his work). But Phillips submitted no evidence showing that an
objective observer understands a wedding cake to convey a message,
muchless that the observer understands the message to be the
baker’s,rather than the marrying couple’s. Indeed, some in the
wedding industry could not explain what message, or whose, a wedding
cake conveys. See Charsley, Interpretation and Custom: The Case of
theWedding Cake, 22 Man 93, 100–101 (1987) (no explanation of
weddingcakes’ symbolism was forthcoming "even amongst those who
might beexpected to be the experts");
id.,
at 104–105 (the cake cutting traditionmight signify "the
bride and groom . . . as appropriating the cake" from the bride’s
parents). And Phillips points to no case in which this Courthas
suggested the provision of a baked good might be expressive conduct.
Cf. ante,
at 7, n. 2 (THOMAS, J., concurring in part and concurring in
judgment);
Hurley v.
Irish-American
Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 U.
S. 557, 568–579 (1995) (citing previouscases recognizing parades to
be expressive);
Barnes v.
Glen Theatre,
Inc., 501 U. S. 560, 565 (1991) (noting precedents
suggesting nude dancing is expressive conduct);
Spence
v.
Washington, 418 U. S. 405, 410 (1974) (observing the
Court’s decades-long recognition of the symbolism of flags). 3 Cite
as: 584 U. S. ____ (2018)
GINSBURG, J., dissenting
do
not evidence hostility to religion of the kind we havepreviously
held to signal a free-exercise violation, nor dothe comments by one
or two members of one of the four decisionmaking entities
considering this case justify reversing the judgment below.
I On March 13,
2014—approximately three months after the ALJ ruled in favor of
the same-sex couple, Craig and Mullins, and two months before
the Commission heard Phillips’ appeal from that decision—William
Jack visited three Colorado bakeries. His visits followed a
similar pattern. He requested two cakes "made to resemble an
open Bible. He also requestedthat each cake be decorated with
Biblical verses. [He]requested that one of the cakes include an
image of two groomsmen, holding hands, with a red ‘X’ over the
image. On one cake, he requested [on] one side[,] . . . ‘God
hates sin. Psalm 45:7’ and on the opposite side of the cake
‘Homosexuality is a detestable sin.Leviticus 18:2.’ On the
second cake, [the one] with theimage of the two groomsmen
covered by a red ‘X’[Jack] requested [these words]: ‘God loves
sinners’ and on the other side ‘While we were yet sinners Christ
died for us. Romans 5:8.’ " App. to Pet. for Cert. 319a; see
id.,
at 300a, 310a.
In
contrast to Jack, Craig and Mullins simply requested awedding cake:
They mentioned no message or anything else distinguishing the cake
they wanted to buy from any other wedding cake Phillips would have
sold.
One
bakery told Jack it would make cakes in the shapeof Bibles, but
would not decorate them with the requested messages; the owner told
Jack her bakery "does not discriminate" and "accept[s] all humans."
Id.,
at 301a (internal quotation marks omitted). The second bakery owner
4 MASTERPIECE CAKESHOP, LTD.
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COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting
told Jack he "had done open Bibles and books many times and that
they look amazing," but declined to make the specific cakes Jack
described because the baker regarded the messages as "hateful."
Id.,
at 310a (internal quotation marks omitted). The third bakery,
according to Jack, saidit would bake the cakes, but would not
include the requested message.
Id.,
at 319a.2
Jack filed charges against each bakery with the Colo- rado Civil
Rights Division (Division). The Division found no probable cause to
support Jack’s claims of unequal treatment and denial of goods or
services based on his Christian religious beliefs.
Id.,
at 297a, 307a, 316a. In this regard, the Division observed that the
bakeries regularlyproduced cakes and other baked goods with
Christian symbols and had denied other customer requests for designs
demeaning people whose dignity the Colorado Anti-discrimination Act
(CADA) protects. See
id.,
at 305a, 314a, 324a. The Commission summarily affirmed the
Division’s no-probable-cause finding. See
id.,
at 326a– 331a.
The
Court concludes that "the Commission’s consideration of Phillips’
religious objection did not accord with itstreatment of [the other
bakers’] objections."
Ante,
at 15. See also
ante,
at 5–7 (GORSUCH, J., concurring). But the cases the Court
aligns are hardly comparable. The bakers would have refused to make
a cake with Jack’s requested message for any customer, regardless of
his or her religion. And the bakers visited by Jack would have sold
himany baked goods they would have sold anyone else. The bakeries’
refusal to make Jack cakes of a kind they would not make for any
customer scarcely resembles Phillips’ refusal to serve Craig and
Mullins: Phillips would
not
sell
—————— 2The
record provides no ideological explanation for the bakeries’
refusals. Cf.
ante, at 1–2, 9, 11 (GORSUCH, J., concurring)
(describingJack’s requests as offensive to the bakers’ "secular"
convictions). 5 Cite as: 584 U. S. ____ (2018)
GINSBURG, J., dissenting
to
Craig and Mullins, for no reason other than their sexualorientation,
a cake of the kind he regularly sold to others. When a couple
contacts a bakery for a wedding cake, the product they are seeking
is a cake celebrating
their
wedding—not a cake celebrating heterosexual weddings or
same-sex weddings—and that is the service Craig and Mullins were
denied. Cf.
ante, at 3–4, 9–10 (GORSUCH, J., concurring). Colorado,
the Court does not gainsay, prohibits precisely the discrimination
Craig and Mullins encountered. See
supra,
at 1. Jack, on the other hand, suffered no service refusal on
the basis of his religion or any other protected characteristic. He
was treated as any othercustomer would have been treated—no better,
no worse.3
The
fact that Phillips might sell other cakes and cookiesto gay and
lesbian customers4 was irrelevant to the issue Craig and Mullins’
case presented. What matters is that Phillips would not provide a
good or service to a same-sex ——————
3
JUSTICE GORSUCH argues that the situations "share all legally
salient features."
Ante,
at 4 (concurring opinion). But what critically differentiates
them is the role the customer’s "statutorily protected trait,"
ibid.,
played in the denial of service. Change Craig and 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. The bakers’ objections to Jack’s
cakes had nothing to do with "religious opposition to same-sex
weddings."
Ante, at 6 (GORSUCH, J., concurring). Instead, the bakers
simply refused to make cakes bearing statements demeaning to
peopleprotected by CADA. With respect to Jack’s second cake, in
particular, where he requested an image of two groomsmen covered by
a red "X" and the lines "God loves sinners" and "While we were yet
sinners Christdied for us," the bakers gave not the slightest
indication that religiouswords, rather than the demeaning image,
prompted the objection. See
supra,
at 3. Phillips did, therefore, discriminate
because of
sexual orientation; the other bakers did not discriminate
because of
religiousbelief; and the Commission properly found
discrimination in one casebut not the other. Cf.
ante,
at 4–6 (GORSUCH, J., concurring).
4But see ante,
at 7 (majority opinion) (acknowledging that
Phillipsrefused to sell to a lesbian couple cupcakes for a
celebration of their union). 6 MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting
couple that he would provide to a heterosexual couple. In contrast,
the other bakeries’ sale of other goods to Christian customers was
relevant: It shows that there were no goods the bakeries would sell
to a non-Christian customer that they would refuse to sell to a
Christian customer. Cf.
ante,
at 15.
Nor
was the Colorado Court of Appeals’ "difference in treatment of these
two instances . . . based on the government’s own assessment of
offensiveness."
Ante, at 16. Phillips declined to make a cake he found
offensive wherethe offensiveness of the product was determined
solely by the identity of the customer requesting it. The three
other bakeries declined to make cakes where their objection tothe
product was due to the demeaning message the requested product would
literally display. As the Court recognizes, a refusal "to design a
special cake with wordsor images . . . might be different from a
refusal to sell any cake at all."
Ante,
at 2.5 The Colorado Court of Appeals did not distinguish
Phillips and the other three bakeriesbased simply on its or the
Division’s finding that messages
—————— 5The
Court undermines this observation when later asserting thatthe
treatment of Phillips, as compared with the treatment of the
other three bakeries, "could reasonably be interpreted as being
inconsistentas to the question of whether speech is involved."
Ante,
at 15. But recall that, while 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. (It appears that
Phillips rarely, if ever, produces wedding cakeswith words on
them—or at least does not advertise such cakes. See Masterpiece
Cakeshop, Wedding, http://www.masterpiececakes.com/wedding-cakes
(as last visited June 1, 2018) (gallery with 31 weddingcake
images, none of which exhibits words).) The Division and the
Court of Appeals could rationally and lawfully distinguish
between a case involving disparaging text and images and a case
involving a wedding cake of unspecified design. The distinction
is not between a cake with text and one without, see
ante,
at 8–9 (GORSUCH, J., concurring); it is between a cake
with a particular design and one whose formwas never even
discussed. 7 Cite as: 584 U. S. ____ (2018)
GINSBURG, J., dissenting
in
the cakes Jack requested were offensive while any message in a cake
for Craig and Mullins was not. The Colorado court distinguished the
cases on the ground thatCraig and Mullins were denied service based
on an aspect of their identity that the State chose to grant
vigorousprotection from discrimination. See App. to Pet. for
Cert.20a, n. 8 ("The Division found that the bakeries did not refuse
[Jack’s] request because of his creed, but rather because of the
offensive nature of the requested message. . . . [T]here was no
evidence that the bakeries based their decisions on [Jack’s]
religion . . . [whereas Phillips] discriminat[ed] on the basis of
sexual orientation."). I do not read the Court to suggest that the
Colorado Legislature’s decision to include certain protected
characteristicsin CADA is an impermissible government prescription
ofwhat is and is not offensive. Cf.
ante,
at 9–10. To repeat,the Court affirms that "Colorado law can
protect gaypersons, just as it can protect other classes of
individuals, in acquiring whatever products and services they
chooseon the same terms and conditions as are offered to other
members of the public."
Ante,
at 10.
II Statements made
at the Commission’s public hearings on Phillips’ case provide no
firmer support for the Court’sholding today. Whatever one may think
of the statements in historical context, I see no reason why the
comments ofone or two Commissioners should be taken to overcome
Phillips’ refusal to sell a wedding cake to Craig and Mullins. The
proceedings involved several layers of independent decisionmaking,
of which the Commission was but one. See App. to Pet. for Cert.
5a–6a. First, the Division had to find probable cause that Phillips
violated CADA. Second, the ALJ entertained the parties’
cross-motions for summary judgment. Third, the Commission heard
Phillips’ appeal. Fourth, after the Commission’s ruling, the Colo8
MASTERPIECE CAKESHOP, LTD.
v.
COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting
rado Court of Appeals considered the case
de novo.
What prejudice infected the determinations of the adjudicators in
the case before and after the Commission? The Court does not say.
Phillips’ case is thus far removed from theonly precedent upon which
the Court relies,
Church of Lukumi Babalu Aye, Inc. v.
Hialeah,
508 U. S. 520 (1993),where the government action that violated a
principle ofreligious neutrality implicated a sole decisionmaking
body, the city council, see
id.,
at 526–528.
* * * For the
reasons stated, sensible application of CADA toa refusal to sell any
wedding cake to a gay couple should occasion affirmance of the
Colorado Court of Appeals’judgment. I would so rule.
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