By Robert S. Zawideh

On June 4, 2018, the United States Supreme Court issued its decision in the case of Masterpiece Cake v. Colorado Civil Rights Commission. That case involved Colorado bakery owner Jack Phillips, an expert baker and devout Christian, who in 2012 told a same-sex couple that, although he would sell them anything else his bakery offered, he would not create a cake for their wedding because of his religious opposition to same-sex marriages. The couple filed a discrimination charge with the Colorado Civil Rights Commission, claiming the baker engaged in illegal discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.” Phillips’ argued unsuccessfully in the lower courts and before the Commission that under the First Amendment, requiring him to create a cake for a same-sex wedding would (1) violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed, and (2) would violate his right to the free exercise of religion.

In a 7-2 decision which produced one majority opinion, two concurring opinions and a dissenting opinion, the Supreme Court deftly avoided the underlying issue all together. Instead of deciding whether a sincerely held religious belief can ever be a basis to deny goods or services to gay persons in the marketplace, the Court found that Colorado failed to consider Phillips’ religious objections with the neutrality required by the Free Exercise Clause.

In the majority opinion, the Court held that the Constitution can, and in some instances must, protect the civil rights of gay persons and gay couples. However, religious and philosophical objections to gay marriage are protected views and in some instances protected forms of speech or expression. The Commission and the Colorado courts failed to recognize the latter, and in some of the hearings, condoned open disdain for Phillip’s religious beliefs.

Justice Thomas wrote separately to make clear that, while he agreed with the majority, the opinion did not adequately address Phillip’s free speech arguments, and went on to rule that wedding cakes are a form of expression, stating that the court previously rejected as the “antithesis of free speech” the notion that governments can “mandate thoughts and statements acceptable to some groups or, indeed, all people”. In her dissent, Justice Ginsberg rejected the majority and concurring opinions, stating “[w]hat matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.”

For the time being, a majority of the Court is walking a fine line by encouraging all sides to this dispute – individuals, businesses, governments and the courts – to be respectful to all parties. Mutual respect and patience is absolutely required, as the courts are a long way from hearing an end to this debate.


For further information regarding these matters, please contact Mr. Zawideh at 248.619.2599 or via email.