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A Footnote In The Supreme Court’s Masterpiece Ruling Bodes Ill For Religious Liberty


The Supreme Court’s 7-2 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission was widely hailed by conservatives and religious liberty advocates on Monday as a win for religious liberty, even though the court dodged the larger First Amendment questions at the heart of the case.

The court ruled that Colorado unconstitutionally discriminated against Jack Phillips, the baker who refused to create a specialty cake celebrating a gay wedding, by showing open hostility to his religious beliefs. But the majority opinion, written by Justice Anthony Kennedy, is confined to the particular circumstances of this one case, as my colleagues Ilya Shapiro and David Harsanyi explain here and here.

It tells us little about how the Supreme Court views the core claim of Phillips, that Colorado violated his First Amendment rights to freedom of speech and free exercise of religion by compelling him to endorse same-sex marriage against his sincerely held religious beliefs. A footnote in Justice Elena Kagan’s separate concurring opinion, joined by Justice Stephen Breyer, points to the reasoning the court might have employed if it had engaged this larger question—and it doesn’t bode well for advocates of free speech and freedom of religion.

Kagan’s Footnote Belies the Left’s Animus Against Religion

Kagan’s footnote is a reply to Justice Neil Gorsuch, who issued a concurring opinion joined by Justice Samuel Alito that noted the Colorado Civil Rights Commission applied a different standard in three others cases in which bakers had been asked to bake cakes with specific religious messages and had refused, citing secular beliefs (a customer had asked for a Bible-shaped cake decorated with a verse, “Homosexuality is a detestable sin – Leviticus 18:22”).

In those cases, the commission had upheld the bakers’ right to refuse their services. Gorsuch notes that the commission clearly applied a double standard, effectively engaging in discrimination against Phillips because of the substance of his belief.

For the commissioners, who openly expressed their animus toward Phillips’s religious beliefs, there is no double standard because the secular beliefs of the other bakers are legitimate, while Phillips’ beliefs are not. Kagan’s footnote encapsulates the Left’s thinking on this issue—namely, that Phillips’s First Amendment claim amounts to nothing. Kagan writes:

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.’ But that is wrong. The cake requested was not a special ‘cake celebrating same-sex marriage.’ It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike… And contrary to Justice Gorsuch’s view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with ‘religious significance.’

In other words, Phillips’s religious beliefs about marriage—beliefs, by the way, which are orthodox teachings in Christianity, Judaism, and Islam—are not to be taken seriously. Nor is the notion that a baker who is asked to make a specialty cake that celebrates what is, for the baker, a religious ceremony, might be engaging in protected speech by creating that cake, in much the same way a photographer or any other artist does.

For Kagan, the law may be construed to achieve a desired outcome, so long as those enforcing it don’t betray their animus toward certain religious beliefs.

The same idea crops up in Justice Ruth Bader Ginsburg’s dissent, joined by Justice Sonya Sotomayor, in which she argues that there is no First Amendment question at all in the Masterpiece case, because “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 (the couple) were denied.”

Ginsberg, like Kagan, doesn’t seem to care that for people with certain religious convictions, weddings are religious celebrations, even sacraments. For Phillips, as indeed for many Christians (and Jews and Muslims), same-sex weddings are not legitimate weddings at all, and participating in them is prohibited by the teachings of their faith.

Forcing such participation, argues Justice Clarence Thomas in an separate opinion joined by Gorsuch, is a violation of Phillips’s First Amendment rights because it would force him to “affirm a belief with which he disagrees.” This kind of coercion, argues Thomas, isn’t just a violation of Phillips’s right of free exercise of religion but also his right to free speech. Compelling him to make a custom wedding cake is the same as compelling protected speech, because Phillips is an artist who is engaged in expressive speech.

Don’t Take Too Much Comfort In The Masterpiece Ruling

That is not the view most Americans take, according to a Morning Consult poll released yesterday in the wake of the court’s ruling. Fifty-seven percent of those surveyed oppose “allowing small business owners to refuse service to LGBT individuals if doing so violates their religious beliefs.”

Of course, the poll doesn’t distinguish between types of small business owners. As Thomas argues, a baker, like a photographer or a florist, is an artist whose work is expressive speech. It’s inaccurate to compare such businesses to a restaurant that refuses to serve same-sex couples in general, because no one is asking the restaurant owner to endorse a message or espouse a belief that violates his or her conscience or religious beliefs.

But even Kennedy’s majority opinion casts doubt on whether a majority of justices really share that view. Kennedy, in a passage that echoes Kagan’s reasoning, even suggests that Colorado might have gotten away with compelling Phillips to violate his religious beliefs if only the commissioners hadn’t been so obvious about their bias:

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 strictly observed. But the official expressions of hostility to religion in some of 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.

All of which to say, conservatives and religious liberty advocates should not take too much comfort in Monday’s ruling. The currents underneath this decision suggest a far more menacing posture toward people who share Jack Phillips’ religious beliefs than the outcome of his particular case might suggest.