Christian baker Jack Phillips (C), his wife Debi and other members of their family walk into the U.S. Supreme Court building, December 5, 2017. | Chip Somodevilla/Getty Images Supreme Court rules on narrow grounds for Colorado baker in same-sex wedding case The court punted on spelling out how the government must weigh the need to both prevent sexual-orientation discrimination and protect religious freedom.

The Supreme Court ruled Monday in favor of a Christian baker in Colorado who refused to make a custom cake for a same-sex couple, but the court punted on spelling out how the government must weigh its responsibilities to both prevent discrimination and protect religious freedom.

Writing for the court’s majority, Justice Anthony Kennedy said the Colorado Civil Rights Commission violated Masterpiece Cakeshop owner Jack Phillips’ rights by showing “hostility” to his religious beliefs as he was found to have violated the law and ordered to attend anti-discrimination training.


However, the high court’s 7-2 ruling in the closely watched case left open the question of how a state enforcing anti-discrimination laws in a different fashion must accommodate an individual’s right to religious freedom and free expression.

Phillips in 2012 rejected a request from a Colorado couple, Charlie Craig and David Mullins, to make a custom cake for their celebration, citing his religious beliefs. The state civil rights commission required Phillips to “cease and desist” from his refusal to bake custom cakes for same-sex couples, to change his business policies, to undergo “comprehensive staff training” along with his employees, and to keep records for two years about any refusals of service.

Lawyers for Phillips had framed his case more as a free-speech issue than one of religious freedom, but the court's ruling Monday took the opposite tack, focusing almost entirely on what the justices viewed as disrespect shown to the baker’s religious convictions.

Kennedy said comments by members of the anti-discrimination panel about Phillips’ religious beliefs “compromised” his right to “neutral and respectful consideration” of his claims for a religious accommodation.

“The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” Kennedy wrote. “Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided."

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Kennedy seized in particular on one commissioner’s comment that invoked slavery and the Holocaust before blasting Phillips’ religious freedom claim as “one of the most despicable piece of rhetoric that people can use to ... to use their religion to hurt others.”

“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 [sic] on the basis of religion as well as sexual orientation,” Kennedy wrote.

Gay rights advocates offered divergent reactions to the narrowly framed decision.

"The bakery may have won the battle, but it’s lost the war," said James Esseks of the ACLU, which represented the gay couple who filed the discrimination complaint. "We read this decision as a reaffirmation of the court’s longstanding commitment to civil rights protections...The bakery got a get out of jail free card because of what the court saw as misbehavior by the civil rights commission."

However, a group of LGBT attorneys blasted the ruling.

“The National LGBT Bar Association is devastated by the Supreme Court’s decision,” the group said. “We believe the rights of minority groups to be free from the oppression of a majority religion cannot be infringed. Freedom of religion is an important and cherished right guaranteed in our Constitution, but that right does not and should not give anyone the right to treat certain Americans as second-class citizens.”



Advocates for those with conservative religious views hailed the decision as a victory, despite the ambiguity in the decision.

“The First Amendment prohibits governments from discriminating against citizens on the basis of religious beliefs,” Attorney General Jeff Sessions said. “The Supreme Court rightly concluded that the Colorado Civil Rights Commission failed to show tolerance and respect for Mr. Phillips’ religious beliefs.”

“We looked forward to celebrating this victory and protecting the right of all Americans to be able to live consistent with their beliefs,” said attorney Kristen Waggoner of the Alliance Defending Freedom, who argued the case for Phillips. “The court has said the law has to be applied in an even-handed manner ... It’s a strong statement about religious hostility and that it has no place in our society.”

Waggoner acknowledged, however, that the court left unresolved what states are required to do when faced with a genuine religious or free-speech objection to laws barring discrimination against LGBT people.



“We expect that the court will eventually have to grapple with these issues,” she said.

The court’s decision seemed deeply influenced by Kennedy’s thinking on the potential collision between gay rights and the views of those who oppose same-sex unions for religious or moral reasons. At oral arguments in the case in December, Kennedy seemed troubled by what he viewed as hostility to the baker’s religion.

At the same time, it seems unlikely that Kennedy would bless any ruling that he expected to deeply undercut gay rights. Kennedy has been responsible for all the Supreme Court’s major decisions backing gay rights in the past couple of decades and wrote the landmark 5-4 ruling the court issued in 2015 requiring all states to legalize gay marriage.

Kennedy’s majority opinion Monday seemed intent on narrowing the impact of the ruling. He argued that Phillips had been treated differently than other bakers brought before the commission. Kennedy also repeatedly noted that the episode that led to the civil charges against Phillips occurred in 2012, when Colorado law did not recognize same-sex marriage.

Kennedy also stressed that the court was not resolving the broader questions in situations different from Phillips’ case.

“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,” said Kennedy, a Reagan appointee and frequent swing justice.

Only the court’s two most liberal justices, Ruth Bader Ginsburg and Sonia Sotomayor, dissented. They said they would have upheld the state’s action against Phillips.

“Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal,” Ginsburg wrote. She said the other situations where the Colorado panel found no violation of anti-discrimination law involved situations where a baker was asked to make a cake with an explicit message the baker found offensive.

“The cases the court aligns are hardly comparable,” Ginsburg wrote.

Two conservative justices, Clarence Thomas and Neil Gorsuch, signed onto a concurring opinion concluding that Phillips’ design of custom cakes was “expressive” conduct entitled to First Amendment protection. Thomas’ opinion on the point stopped just short of saying it is unconstitutional to order someone to prepare such a cake.

