In today’s Supreme Court decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, baker Jack Phillips won absolution from legal liability for refusing to sell a wedding cake to a gay couple. On the surface, the 7-2 decision, written by Justice Anthony Kennedy, appears to not be the disaster that many LGBTQ rights advocates had feared. It is limited to the specific facts of this case, where the majority found that statements of some commissioners, along with the commission’s treatment of discrimination claims brought by another customer who claimed that secular bakers refused his requests to bake cakes with homophobic messages, were evidence of the government’s “hostility” to Phillips’s religion. A different case, without those particular facts, could lead to a different result.
So while the decision is not a sweeping exemption from anti-discrimination laws, as some on the right had hoped, it’s hardly a harmless bump on the road to full equality. Less noticed, perhaps, but no less crucial to Phillips and his allies was how assiduously Justice Kennedy labored to find government “hostility” to Phillips’s religion, and therefore a violation of his free-exercise rights.
Kennedy’s decision demonstrates that this Court has absorbed some of ADF’s arguments about the supposed conflict between LGBTQ equality and religious liberty, and has adopted a potentially wide-ranging definition of government “hostility” to religion. If the Court can accept claims of government “hostility” on the tepid evidence on offer in Masterpiece, it will embolden other Jack Phillipses to refuse to serve LGBTQ customers, and to hope for a “slip-up” by a public official as uncontroversial as “religion should not be used as an excuse to discriminate.”
Just three years ago, Kennedy inflamed Christian-right activists with his majority opinion in Obergefell v. Hodges, making marriage equality the law of the land. But today he may have redeemed himself in their eyes by breathing new life into their claims that laws barring discrimination based on sexual orientation are at odds with religious liberty.
In the six years it took to wind its way through the legal system, Masterpiece became the cornerstone of this Christian-right public-relations campaign. In 2012, David Mullins and Charlie Craig, a gay couple, had visited Phillips’s shop to inquire about a cake celebrating their wedding; Phillips refused, claiming it violated his sincerely held religious convictions against same-sex marriage. Mullins and Craig sued under Colorado’s public-accommodations law, which prohibits discrimination on the basis of sexual orientation. The Colorado Civil Rights Commission found in their favor, as did the Colorado Court of Appeals. Phillips and his attorneys at Alliance Defending Freedom litigated the case to the Supreme Court, which today found that the commission had violated Phillips’s constitutional rights.