The NCSL Blog


By Lisa Soronen

In a 7-2 decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the U.S. Supreme Court reversed a ruling against the owner of a cake shop who refused to create a wedding cake for a same-sex couple because of his religious beliefs.

Baker Jack Phillips decorates a cake in his Masterpiece Cakeshop in Lakewood, Colorado U.S. September 21, 2017. REUTERS/Rick WilkingThe court concluded the cake maker was entitled to but did not experience a “neutral decisionmaker who [gave] full and fair consideration to his religious objection.” The State and Local Legal Center (SLLC) filed an amicus brief in this case supporting Colorado.

Charlie Craig and Dave Mullins filed a complaint against Masterpiece Cakeshop claiming it violated Colorado's public accommodations law, which prohibits discrimination in public accommodations on the basis of sexual orientation, when it refused to create a wedding cake for them. The cake shop owner, Jack Phillips, explained: “To create a wedding cake for an event that celebrates 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.”

Before the Colorado Civil Rights Commission and the Colorado Court of Appeals, Masterpiece argued that being required to create cakes for same-sex weddings violates Phillips’ First Amendment free speech and free exercise rights. Phillips lost in both venues.

The Supreme Court, in an opinion written by Justice Anthony Kennedy, ruled in favor of Masterpiece, concluding that the Colorado Civil Rights Commission acted with hostility toward religion “inconsistent with the First Amendment’s guarantee that our laws be applied … neutral[ly] toward religion.”

Specifically, a number of commissioners made anti-religion remarks at hearings including that faith is “one of the most despicable pieces of rhetoric that people can use.” Also, on at least three other occasions the commission allowed bakers to refuse to create cakes conveying disapproval of same-sex marriage, along with religious text because the cake makers deemed these messages offensive.

According to the court:  “A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. 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 Supreme Court didn’t rule that Phillips had a First Amendment free speech or free exercise of religion right to not make a wedding cake for a same-sex couple. The court also didn’t address the argument made by the SLLC (and others) that the court should not create an exception to Colorado’s public accommodations law for wedding businesses. According to NCSL, 21 other states have public accommodations laws that prohibit discrimination based on sexual orientation. The SLLC brief points out over 100 local governments in 38 states have adopted ordinances protecting citizens from sexual-orientation discrimination in public accommodations.

The court also didn’t offer any insight as to how it would have decided this case had the commissioners not demonstrated a bias against religion or how similar, future cases should be decided. Kennedy concluded by simply stating the following: “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 open market.”

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. Ginsburg began her opinion by noting she agreed with much of the court’s opinion. She went on to say that the different outcomes for the other three cake makers “do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below.”

The National League of Cities, the International City/County Management Association, and the International Municipal Lawyers Association joined the SLLC brief which was written by Bruce La Pierre, Washington University School of Law Appellate Clinic and Brian Walsh, Bryan Cave. 

Lisa Soronen is executive director of the State and Local Legal Center and is a frequent contributor to the NCSL Blog on judicial issues.


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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.