WASHINGTON – A divided Supreme Court on Monday absolved a Colorado baker of discrimination for refusing to create a custom wedding cake for a same-sex couple, ruling that the state exhibited “religious hostility” against him.
The 7-2 verdict criticized the state’s treatment of Jack Phillips’ religious objections to gay marriage in 2012, several years before the practice was legalized nationwide. The justices ruled that a state civil rights commission was hostile to him while allowing other bakers to refuse to create cakes that demeaned gays and same-sex marriages.
As a result, the long-awaited decision did not resolve whether other opponents of same-sex marriage, including bakers, florists, photographers and videographers, can refuse commercial wedding services to gay couples. In fact, the court on Monday scheduled a similar case involving a Washington State florist for consideration at their private conference Thursday.
Justice Anthony Kennedy wrote the court’s decision against the same-sex couple, Charlie Craig and Dave Mullins, departing from his long history of opinions in favor of gay rights dating back a generation. Included among them was the court’s 2015 decision legalizing gay marriage nationwide.
Phillips claimed victory, but it was unclear if the court’s ruling would permit him to refuse future gay or lesbian customers seeking wedding cakes.
“The Supreme Court affirmed that the government must respect my religious beliefs about marriage,” he wrote for USA TODAY. “It welcomed me back from the outskirts, where the state had pushed me.”
Kennedy reasoned that Phillips, in refusing to create a same-sex wedding cake, had good reason to believe he was within his rights. State law at the time allowed merchants some latitude to decline specific messages, such as those demeaning gay people and gay marriages.
The government cannot impose regulations hostile to citizens’ religious beliefs, the ruling said. But it was limited to Colorado’s treatment of Phillips; had the process been fair, Kagan and Breyer likely would have been on the other side, and Kennedy would have had a tougher decision to make.
“A vendor can choose the products he sells, but not the customers he serves — no matter the reason,” Kagan wrote, joined by Breyer. “Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples.”
Gay rights proponents picked up on that theme, noting the ruling will not affect other claims of discrimination by same-sex couples.
“Anti-LGBTQ extremists did not win the sweeping ‘license to discriminate’ they have been hoping for — and today’s ruling does not change our nation’s longstanding civil rights laws,” Chad Griffin, president of the Human Rights Campaign, said.
But Ralph Reed, chairman of the Faith and Freedom Coalition, claimed that the decision “reaffirmed that the Constitution protects freedom of speech, including speech of a religious content, and the state cannot compel speech against the will of the individual.”
During oral argument in December, Kennedy and other conservative justices had expressed concern about the potential effect on other merchants with strong religious objections to same-sex marriage, from chefs to florists.
The five-year-old legal battle between Phillips and Craig and Mullins represented a test between the Constitution’s guarantees of free speech and religion and laws in 22 states prohibiting discrimination against the LGBT community.
Phillips, 62, owner of Masterpiece Cakeshop, was fighting for the rights of “creative artists” to choose what they will sell. Craig, 37, and Mullins, 33, were fighting for the rights of LGBT customers to choose what they will buy.
Craig and Mullins won before the state Civil Rights Commission and Court of Appeals, thanks to the state’s inclusion of sexual orientation in its anti-discrimination law. But the Supreme Court, bolstered last April by the addition of stalwart conservative and fellow Coloradan Neil Gorsuch, represented a tougher test.
Gorsuch wrote a 12-page concurrence in which he said, “The Constitution protects not just popular religious exercises from the condemnation off civil authorities. It protects them all.”
The high court had weighed in twice before on the subject of same-sex marriage. In 2013, it ruled that the federal government must recognize gay and lesbian marriages in the 12 states that had legalized them. In 2015, it extended same-sex marriage nationwide.
But even as he authored the court’s landmark decision, Kennedy held out an olive branch to religious conservatives.
“It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” Kennedy wrote in 2015.
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