David Cole is national legal director of the ACLU.
In law, as in less civil arenas of conflict, you can lose a battle but win the war. That’s what happened in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case pitting a Christian baker against a gay couple who sought to buy a wedding cake on the same terms as any other customers. The ACLU represented the gay couple; I argued their case in the Supreme Court. The court ruled Monday in favor of the baker, but on the exceedingly narrow ground that the state civil rights commission’s consideration was biased by hostility toward religion. Importantly, the court declined to adopt the baker’s principal argument — and the only argument made by the Trump administration — that “expressive” businesses that object to gay and lesbian weddings have a First Amendment right to discriminate. On the contrary, the court reaffirmed our main point: that there is no general First Amendment exception to laws protecting LGBT customers from discrimination.
The case arose when Charlie Craig and David Mullins sought to buy a cake to celebrate their upcoming wedding. When bakery owner Jack Phillips learned that they were going to use the cake to celebrate their wedding, he turned them away, claiming that his religion barred him from making a cake for a same-sex couple, even though he routinely made such cakes for opposite-sex couples.
The ACLU filed a complaint on behalf of the couple, claiming that Phillips’ actions violated Colorado’s public accommodations law, which forbids businesses that serve the public from denying service on the basis of race, sex, sexual orientation and the like. The Colorado Civil Rights Commission, and next the Colorado Court of Appeals, ruled in our favor.
In the Supreme Court, the baker won, but not on the ground he principally advanced. His main argument was that where a business offers expressive products, the First Amendment prohibition on “compelled speech” bars the government from requiring the business to provide that product when it objects to doing so. The Trump administration backed that argument, maintaining that when businesses provide expressive products or services for “expressive events” such as weddings, the First Amendment bars states from requiring them to provide them to gay and lesbian customers on the same terms as heterosexual customers.
Justice Anthony M. Kennedy, writing the majority opinion, could not have been more clear in rejecting the argument that there is a First Amendment right to discriminate. He wrote that “it is a general rule that [religious and philosophical] objections do not allow business owners . . . to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
Kennedy acknowledged that a minister (who is not, of course, a business open to the public) could not be compelled to perform a same-sex wedding if his religious scruples prohibited it, but warned that “if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”
Why, then, did the baker win? The court found that in this particular instance, the Colorado Civil Rights Commission had evinced hostility to religion. It cited a commissioner who said that “it is one of the most despicable piece of rhetoric that people can use to — to use their religion to hurt others.” It cited another commissioner saying that Phillips can believe “what he wants to believe,” but cannot act on that belief “if he decides to do business in the state.” And the court found additional evidence of bias against religion in the commission’s dismissal of complaints against three other bakers who had refused a request to make cakes with anti-gay messages.
That aspect of the ruling is wrong. “Despicable” was an unfortunate choice of words, but the commissioner’s statement that one cannot invoke religion to harm others is actually black-letter constitutional law, as is the notion that one cannot invoke religion to avoid complying with a general rule requiring businesses not to discriminate. The Supreme Court itself said just that in 1990 in Employment Division v. Smith, ruling that a Native American tribe could not invoke its religious beliefs in peyote use to avoid the state’s criminal prohibition on smoking peyote.
But what’s critical is that this reasoning is a one-time ruling for this case only. The court made clear that states are free to require businesses, including bakers, to serve gay and lesbian customers equally, including in the provision of wedding cakes. In fact, Charlie Craig and David Mullins could go right back into Masterpiece Cakeshop today and request a cake to celebrate their wedding anniversary — and if Jack Phillips refused them, he would have no First Amendment right to turn them away.