LTC 311-2018 Discussion Regarding Recent U.S. Supreme Court Dec,MEAMIBEACH
OFFICE OF THE CITY ATTORNEY
LTC No. 311-2018
LETTER TO COMMISSION
TO: Mayor Dan Gelber and Members of the City Commission
FROM: Raul J. Aguila, City Attorney -E.
DATE: June 5, 2018
SUBJECT: Discussion Regarding Recent U.S. Supreme Court Decision
In Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission
On June 4, 2018, the U.S. Supreme Court issued its opinion in Masterpiece Cakeshop,
Ltd v. Colorado Civil Rights Commission.
In Masterpiece Cakeshop, a baker refused to bake a wedding cake for a same-sex
couple based upon the contention that he would be required to use his artistic skills to
make an expressive statement (the wedding cake) inconsistent with his religious beliefs.
The Colorado Anti -Discrimination Act barred discrimination against gay people in the
provision of services at a place of public accommodation, which it defined to include any
"place of business engaged in any sales to the public" and "any place offering services
to the public." The gay couple filed a complaint and the Colorado Civil Rights
Commission ruled in favor of the couple; a state appeals court upheld its decision.
The U.S. Supreme Court reviewed that decision. In a 7-2 decision, the Supreme Court
first reaffirmed its precedents making clear that the government can make laws of
general applicability barring discrimination against gay people by businesses, and that
in most cases, a proprietor's religious objections cannot exempt him from that
regulation.
The Court also found, however, that proprietors may be protected by the First
Amendment if providing services to protected people (such as LGBT people) requires
the proprietor to engage in artistic expression that could be interpreted as support for
same sex marriage in violation of the proprietor's sincerely held religious beliefs. Here,
the baker contended that a wedding cake is a work of artistic expression in a way that a
birthday cake is not. The Court left open the question of whether a wedding cake is an
artistic expression and whether the baker would be protected if it was.
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June 5, 2018
Page 2
Instead, the Court held that members of the Colorado Civil Rights Commission had
been impermissibly biased against the religious convictions of the baker when they
compared his religious objections to those of Nazis and slave owners. Therefore, they
ruled, the Commission had not provided a neutral adjudication of the case when they
weighed the rights of the gay couple against the rights of the baker. On that narrow
basis, the decision was vacated.
The City Attorney's Office is currently analyzing the Masterpiece Cakeshop decision
and reviewing our City's Human Rights Ordinance in light of that decision for possible
revisions or enhancements that may be deemed advisable. We will provide a follow-up
LTC at a later date, recommending possible changes to our current Human Rights
Ordinance to ensure that it remains fully enforceable and that it fully protects all persons
covered by it. If changes are recommended, Mayor Gelber has offered to sponsor
legislation enacting those proposed changes.
A copy of the decision is attached here.
RJA: RR/mmm
F:WTTO\ROSR\RFR CMB\2018-06-05 LTC - Discussion Regarding Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission (1).docx
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No Shepard's SignalTM
As of: June 4, 2018 5:35 PM Z
Masterpiece Cakeshop v. Colo. Civil Rights Comm'n
Supreme Court of the United States
December 5, 2017, Argued; June 4, 2018, Decided
No. 16-111.
Reporter
2018 U.S. LEXIS 3386 *
MASTERPIECE CAKESHOP, LTD., ET AL.,
PETITIONERS v. COLORADO CIVIL RIGHTS
COMMISSION, ET AL.
Notice: This preliminary Lexis version is unedited and
subject to revision. The LEXIS pagination of this
document is subject to change pending release of the
final published version.
Prior History: [*1] ON WRIT OF CERTIORARI TO
THE COURT OF APPEALS OF COLORADO
Disposition: 370 P. 3d 272, reversed.
Core Terms
cake, wedding, bakers, same-sex, religious, customer,
message, marriage, couple, cases, religious belief,
celebrating, religion, bakery, offensive, sexual
orientation, civil rights, court of appeals, words, hostility,
public accommodation, public -accommodations,
convey, shop, discriminate, services, goods and
services, generality, Cakeshop, communicate
Syllabus
Masterpiece Cakeshop, Ltd., is a Colorado bakery
owned and operated by Jack Phillips, an expert baker
and devout Christian. In 2012 he told a same-sex
couple that he would not create a cake for their wedding
celebration because of his religious opposition to same-
sex marriages—marriages that Colorado did not then
recognize—but that he would sell them other baked
goods, e.g., birthday cakes. The couple filed a charge
with the Colorado Civil Rights Commission
(Commission) pursuant to the Colorado Anti -
Discrimination Act (CADA), which prohibits, as relevant
here, 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." Under
CADA's administrative review system, the Colorado
Civil Rights Division first found probable cause for a
violation and referred the case to the Commission. The
Commission then referred the case for a formal hearing
before a state Administrative Law Judge (ALJ), who
ruled in the couple's favor. In so doing, the ALJ rejected
Phillips' First Amendment claims: that requiring him to
create a cake for a same-sex wedding would [*2]
violate his right to free speech by compelling him to
exercise his artistic talents to express a message with
which he disagreed and would violate his right to the
free exercise of religion. Both the Commission and the
Colorado Court of Appeals affirmed.
Held: The Commission's actions in this case violated the
Free Exercise Clause. Pp. 9-18.
(a) The laws and the Constitution can, and in some
instances must, protect gay persons and gay couples in
the exercise of their civil rights, but religious and
philosophical objections to gay marriage are protected
views and in some instances protected forms of
expression. See Obergefell v. Hodges, 576 U. S. _,
. While it is unexceptional that Colorado law can
protect gay persons in acquiring products and services
on the same terms and conditions as are offered to
other members of the public, the law must be applied in
a manner that is neutral toward religion. To Phillips, his
claim that using his artistic skills to make an expressive
statement, a wedding endorsement in his own voice and
of his own creation, has a significant First Amendment
speech component and implicates his deep and sincere
religious beliefs. His dilemma was understandable in
2012, which was before Colorado recognized the
validity of gay marriages [*3] performed in the State and
before this Court issued United States v. Windsor, 570
U. S. 744, or Obergefell. Given the State's position at
the time, there is some force to Phillips' argument that
he was not unreasonable in deeming his decision lawful.
State law at the time also afforded storekeepers some
latitude to decline to create specific messages they
considered offensive. Indeed, while the instant
2018 U.S. LEXIS 3386, *3
enforcement proceedings were pending, the State Civil
Rights Division concluded in at least three cases that a
baker acted lawfully in declining to create cakes with
decorations that demeaned gay persons or gay
marriages. Phillips too was entitled to a neutral and
respectful consideration of his claims in all the
circumstances of the case. Pp. 9-12.
(b) That consideration was compromised, however, by
the Commission's treatment of Phillips' case, which
showed elements of a clear and impermissible hostility
toward the sincere religious beliefs motivating his
objection. As the record shows, some of the
commissioners at the Commission's formal, public
hearings endorsed the view that religious beliefs cannot
legitimately be carried into the public sphere or
commercial domain, disparaged Phillips' faith as
despicable and characterized [*4] it as merely
rhetorical, and compared his invocation of his sincerely
held religious beliefs to defenses of slavery and the
Holocaust. No commissioners objected to the
comments. Nor were they mentioned in the later state -
court ruling or disavowed in the briefs filed here. The
comments thus cast doubt on the fairness and
impartiality of the Commission's adjudication of Phillips'
case.
Another indication of hostility is the different treatment of
Phillips' case and the cases of other bakers with
objections to anti -gay messages who prevailed before
the Commission. The Commission ruled against Phillips
in part on the theory that any message on the requested
wedding cake would be attributed to the customer, not
to the baker. Yet the Division did not address this point
in any of the cases involving requests for cakes
depicting anti -gay marriage symbolism. The Division
also considered that each bakery was willing to sell
other products to the prospective customers, but the
Commission found Phillips' willingness to do the same
irrelevant. The State Court of Appeals' brief discussion
of this disparity of treatment does not answer Phillips'
concern that the State's practice was to disfavor the [*5]
religious basis of his objection. Pp. 12-16.
(c) For these reasons, the Commission's treatment of
Phillips' case violated the State's duty under the First
Amendment not to base laws or regulations on hostility
to a religion or religious viewpoint. The government,
consistent with the Constitution's guarantee of free
exercise, cannot impose regulations that are hostile to
the religious beliefs of affected citizens and cannot act
in a manner that passes judgment upon or presupposes
the illegitimacy of religious beliefs and practices. Church
of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520.
Factors relevant to the assessment of governmental
neutrality include "the historical background of the
decision under challenge, the specific series of events
leading to the enactment or official policy in question,
and the legislative or administrative history, including
contemporaneous statements made by members of the
decisionmaking body." Id., at 540. In view of these
factors, the record here demonstrates that the
Commission's consideration of Phillips' case was
neither tolerant nor respectful of his religious beliefs.
The Commission gave "every appearance," id., at 545,
of adjudicating his religious objection based on a
negative normative "evaluation of the particular
justification" for [*6] his objection and the religious
grounds for it, id., at 537, but government has no role in
expressing or even suggesting whether the religious
ground for Phillips' conscience -based objection is
legitimate or illegitimate. The inference here is thus that
Phillips' religious objection was not considered with the
neutrality required by the Free Exercise Clause. The
State's interest could have been weighed against
Phillips' sincere religious objections in a way consistent
with the requisite religious neutrality that must be strictly
observed. But the official expressions of hostility to
religion in some of the commissioners' comments were
inconsistent with that requirement, and the
Commission's disparate consideration of Phillips' case
compared to the cases of the other bakers suggests the
same. Pp. 16-18.
370 P. 3d 272, reversed.
Judges: Kennedy, J., delivered the opinion of the Court,
in which Roberts, C. J., and Breyer, Alito, Kagan, and
Gorsuch, JJ., joined. Kagan, J., filed a concurring
opinion, in which Breyer, J., joined. Gorsuch, J., filed a
concurring opinion, in which Alito, J., joined. Thomas, J.,
filed an opinion concurring in part and concurring in the
judgment, in which Gorsuch, J., joined. Ginsburg, J.,
filed a dissenting opinion, [*7] in which Sotomayor, J.,
joined.
Opinion by: KENNEDY
Opinion
Justice Kennedy delivered the opinion of the Court.
In 2012 a same-sex couple visited Masterpiece
Cakeshop, a bakery in Colorado, to make inquiries
Page 2 of 23
2018 U.S. LEXIS 3386, *7
about ordering a cake for their wedding reception. The
shop's owner told the couple that he would not create a
cake for their wedding because of his religious
opposition to same-sex marriages—marriages the State
of Colorado itself did not recognize at that time. The
couple filed a charge with the Colorado Civil Rights
Commission alleging discrimination on the basis of
sexual orientation in violation of the Colorado Anti -
Discrimination Act.
The Commission determined that the shop's actions
violated the Act and ruled in the couple's favor. The
Colorado state courts affirmed the ruling and its
enforcement order, and this Court now must decide
whether the Commission's order violated the
Constitution.
The case presents difficult questions as to the proper
reconciliation of at least two principles. The first is the
authority of a State and its governmental entities to
protect the rights and dignity of gay persons who are, or
wish to be, married but who face discrimination when
they seek goods or services. The [*8] second is the
right of all persons to exercise fundamental freedoms
under the First Amendment, as applied to the States
through the Fourteenth Amendment.
The freedoms asserted here are both the freedom of
speech and the free exercise of religion. The free
speech aspect of this case is difficult, for few persons
who have seen a beautiful wedding cake might have
thought of its creation as an exercise of protected
speech. This is an instructive example, however, of the
proposition that the application of constitutional
freedoms in new contexts can deepen our
understanding of their meaning.
One of the difficulties in this case is that the parties
disagree as to the extent of the baker's refusal to
provide service. If a baker refused to design a special
cake with words or images celebrating the marriage—
for instance, a cake showing words with religious
meaning—that might be different from a refusal to sell
any cake at all. In defining whether a baker's creation
can be protected, these details might make a difference.
The same difficulties arise in determining whether a
baker has a valid free exercise claim. A baker's refusal
to attend the wedding to ensure that the cake is cut the
right way, or a refusal to put certain religious [*9] words
or decorations on the cake, or even a refusal to sell a
cake that has been baked for the public generally but
includes certain religious words or symbols on it are just
three examples of possibilities that seem all but endless.
Whatever the confluence of speech and free exercise
principles might be in some cases, the Colorado Civil
Rights Commission's consideration of this case was
inconsistent with the State's obligation of religious
neutrality. The reason and motive for the baker's refusal
were based on his sincere religious beliefs and
convictions. The Court's precedents make clear that the
baker, in his capacity as the owner of a business
serving the public, might have his right to the free
exercise of religion limited by generally applicable laws.
Still, the delicate question of when the free exercise of
his religion must yield to an otherwise valid exercise of
state power needed to be determined in an adjudication
in which religious hostility on the part of the State itself
would not be a factor in the balance the State sought to
reach. That requirement, however, was not met here.
When the Colorado Civil Rights Commission considered
this case, it did not do so with the religious [*10]
neutrality that the Constitution requires.
Given all these considerations, it is proper to hold that
whatever the outcome of some future controversy
involving facts similar to these, the Commission's
actions here violated the Free Exercise Clause; and its
order must be set aside.
A
Masterpiece Cakeshop, Ltd., is a bakery in Lakewood,
Colorado, a suburb of Denver. The shop offers a variety
of baked goods, ranging from everyday cookies and
brownies to elaborate custom-designed cakes for
birthday parties, weddings, and other events.
Jack Phillips is an expert baker who has owned and
operated the shop for 24 years. Phillips is a devout
Christian. He has explained that his "main goal in life is
to be obedient to" Jesus Christ and Christ's "teachings
in all aspects of his life." App. 148. And he seeks to
"honor God through his work at Masterpiece Cakeshop."
Ibid. One of Phillips' religious beliefs is that "God's
intention for marriage from the beginning of history is
that it is and should be the union of one man and one
woman." Id., at 149. To Phillips, creating a wedding
cake for a same-sex wedding would be equivalent to
participating in a celebration that is contrary to his own
most deeply held beliefs.
Phillips met Charlie [*11] Craig and Dave Mullins when
they entered his shop in the summer of 2012. Craig and
Mullins were planning to marry. At that time, Colorado
did not recognize same-sex marriages, so the couple
Page 3 of 23
2018 U.S. LEXIS 3386, *11
planned to wed legally in Massachusetts and afterwards
to host a reception for their family and friends in Denver.
To prepare for their celebration, Craig and Mullins
visited the shop and told Phillips that they were
interested in ordering a cake for "our wedding." Id., at
152 (emphasis deleted). They did not mention the
design of the cake they envisioned.
Phillips informed the couple that he does not "create"
wedding cakes for same-sex weddings. Ibid. He
explained, "I'll make your birthday cakes, shower cakes,
sell you cookies and brownies, I just don't make cakes
for same sex weddings." Ibid. The couple left the shop
without further discussion.
The following day, Craig's mother, who had
accompanied the couple to the cakeshop and been
present for their interaction with Phillips, telephoned to
ask Phillips why he had declined to serve her son.
Phillips explained that he does not create wedding
cakes for same-sex weddings because of his religious
opposition to same-sex marriage, and also because
Colorado (at [*12] that time) did not recognize same-
sex marriages. Id., at 153. He later explained his belief
that "to create a wedding cake for an event that
celebrates something that directly goes against the
teachings of the Bible, would have been a personal
endorsement and participation in the ceremony and
relationship that they were entering into." Ibid.
(emphasis deleted).
B
For most of its history, Colorado has prohibited
discrimination in places of public accommodation. In
1885, less than a decade after Colorado achieved
statehood, the General Assembly passed "An Act to
Protect All Citizens in Their Civil Rights," which
guaranteed "full and equal enjoyment" of certain public
facilities to "all citizens," "regardless of race, color or
previous condition of servitude." 1885 Colo. Sess. Laws
pp. 132-133. A decade later, the General Assembly
expanded the requirement to apply to "all other places
of public accommodation." 1895 Colo. Sess. Laws ch.
61, p. 139.
Today, the Colorado Anti -Discrimination Act (CADA)
carries forward the state's tradition of prohibiting
discrimination in places of public accommodation.
Amended in 2007 and 2008 to prohibit discrimination on
the basis of sexual orientation as well as other [*13]
protected characteristics, CADA in relevant part
provides as follows:
"It is a discriminatory practice and unlawful for a person,
directly or indirectly, to refuse, withhold from, or deny to
an individual or a group, because of disability, race,
creed, color, sex, sexual orientation, marital status,
national origin, or ancestry, the full and equal enjoyment
of the goods, services, facilities, privileges, advantages,
or accommodations of a place of public
accommodation." Colo. Rev. Stat. §24-34-601(2)(a)
(2017).
The Act defines "public accommodation" broadly to
include any "place of business engaged in any sales to
the public and any place offering services ... to the
public," but excludes "a church, synagogue, mosque, or
other place that is principally used for religious
purposes." §24-34-601(1).
CADA establishes an administrative system for the
resolution of discrimination claims. Complaints of
discrimination in violation of CADA are addressed in the
first instance by the Colorado Civil Rights Division. The
Division investigates each claim; and if it finds probable
cause that CADA has been violated, it will refer the
matter to the Colorado Civil Rights Commission. The
Commission, in turn, decides whether to initiate a formal
hearing [*14] before a state Administrative Law Judge
(ALJ), who will hear evidence and argument before
issuing a written decision. See §§24-34-306, 24-4-
105(14). The decision of the ALJ may be appealed to
the full Commission, a seven -member appointed body.
The Commission holds a public hearing and deliberative
session before voting on the case. If the Commission
determines that the evidence proves a CADA violation,
it may impose remedial measures as provided by
statute. See §24-34-306(9). Available remedies include,
among other things, orders to cease-and-desist a
discriminatory policy, to file regular compliance reports
with the Commission, and "to take affirmative action,
including the posting of notices setting forth the
substantive rights of the public." §24-34-605. Colorado
law does not permit the Commission to assess money
damages or fines. §§24-34-306(9), 24-34-605.
C
Craig and Mullins filed a discrimination complaint
against Masterpiece Cakeshop and Phillips in August
2012, shortly after the couple's visit to the shop. App.
31. The complaint alleged that Craig and Mullins had
been denied "full and equal service" at the bakery
because of their sexual orientation, id., at 35, 48, and
that it was Phillips' "standard business practice" not to
provide cakes for same-sex weddings, [*15] id., at 43.
Page 4 of 23
2018 U.S. LEXIS 3386, *15
The Civil Rights Division opened an investigation. The
investigator found that "on multiple occasions," Phillips
"turned away potential customers on the basis of their
sexual orientation, stating that he could not create a
cake for a same-sex wedding ceremony or reception"
because his religious beliefs prohibited it and because
the potential customers "were doing something illegal"
at that time. Id., at 76. The investigation found that
Phillips had declined to sell custom wedding cakes to
about six other same-sex couples on this basis. Id., at
72. The investigator also recounted that, according to
affidavits submitted by Craig and Mullins, Phillips' shop
had refused to sell cupcakes to a lesbian couple for their
commitment celebration because the shop "had a policy
of not selling baked goods to same-sex couples for this
type of event." Id., at 73. Based on these findings, the
Division found probable cause that Phillips violated
CADA and referred the case to the Civil Rights
Commission. Id., at 69.
The Commission found it proper to conduct a formal
hearing, and it sent the case to a State ALJ. Finding no
dispute as to material facts, the ALJ entertained cross-
motions for summary judgment and ruled in the couple's
favor. The [*16] ALJ first rejected Phillips' argument that
declining to make or create a wedding cake for Craig
and Mullins did not violate Colorado law. It was
undisputed that the shop is subject to state public
accommodations laws. And the ALJ determined that
Phillips' actions constituted prohibited discrimination on
the basis of sexual orientation, not simply opposition to
same-sex marriage as Phillips contended. App. to Pet.
for Cert. 68a -72a.
Phillips raised two constitutional claims before the ALJ.
He first asserted that applying CADA in a way that
would require him to create a cake for a same-sex
wedding would violate his First Amendment right to free
speech by compelling him to exercise his artistic talents
to express a message with which he disagreed. The
ALJ rejected the contention that preparing a wedding
cake is a form of protected speech and did not agree
that creating Craig and Mullins' cake would force Phillips
to adhere to "an ideological point of view." Id., at 75a.
Applying CADA to the facts at hand, in the ALJ's view,
did not interfere with Phillips' freedom of speech.
Phillips also contended that requiring him to create
cakes for same-sex weddings would violate his right to
the free exercise of religion, [*17] also protected by the
First Amendment. Citing this Court's precedent in
Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U. S. 872 (1990), the ALJ determined that
CADA is a "valid and neutral law of general applicability"
and therefore that applying it to Phillips in this case did
not violate the Free Exercise Clause. Id., at 879; App. to
Pet. for Cert. 82a -83a. The ALJ thus ruled against
Phillips and the cakeshop and in favor of Craig and
Mullins on both constitutional claims.
The Commission affirmed the ALJ's decision in full. Id.,
at 57a. The Commission ordered Phillips to "cease and
desist from discriminating against ... same-sex couples
by refusing to sell them wedding cakes or any product
[they] would sell to heterosexual couples." Ibid. It also
ordered additional remedial measures, including
"comprehensive staff training on the Public
Accommodations section" of CADA "and changes to any
and all company policies to comply with ... this Order."
Id., at 58a. The Commission additionally required
Phillips to prepare "quarterly compliance reports" for a
period of two years documenting "the number of patrons
denied service" and why, along with "a statement
describing the remedial actions taken." Ibid.
Phillips appealed to the Colorado Court of Appeals,
which affirmed the Commission's legal determinations
and [*18] remedial order. The court rejected the
argument that the "Commission's order
unconstitutionally compels" Phillips and the shop "to
convey a celebratory message about same sex
marriage." Craig v. Masterpiece Cakeshop, Inc., 370 P.
3d 272. 283 (2015). The court also rejected the
argument that the Commission's order violated the Free
Exercise Clause. Relying on this Court's precedent in
Smith, supra, at 879, the court stated that the Free
Exercise Clause "does not relieve an individual of the
obligation to comply with a valid and neutral law of
general applicability" on the ground that following the
law would interfere with religious practice or belief. 370
P. 3d, at 289. The court concluded that requiring Phillips
to comply with the statute did not violate his free
exercise rights. The Colorado Supreme Court declined
to hear the case.
Phillips sought review here, and this Court granted
certiorari. 582 U. S. (2017). He now renews his
claims under the Free Speech and Free Exercise
Clauses of the First Amendment.
I I
A
Our society has come to the recognition that gay
persons and gay couples cannot be treated as social
outcasts or as inferior in dignity and worth. For that
Page 5 of 23
2018 U.S. LEXIS 3386, *18
reason the laws and the Constitution can, and in some
instances must, protect them in the exercise of their civil
rights. The exercise of their freedom on terms equal to
others must be given great weight and respect by [*19]
the courts. At the same time, the religious and
philosophical objections to gay marriage are protected
views and in some instances protected forms of
expression. As this Court observed in Obergefell v.
Hodges, 576 U. S. (2015), "[t]he First Amendment
ensures that religious organizations and persons are
given proper protection as they seek to teach the
principles that are so fulfilling and so central to their
lives and faiths." Id., at (slip op., at 27).
Nevertheless, while those religious and philosophical
objections are protected, it is a general rule that such
objections do not allow business owners and other
actors in the economy and in society to deny protected
persons equal access to goods and services under a
neutral and generally applicable public accommodations
law. See Newman v. Piggy Park Enterprises, Inc., 390
U. S. 400, 402, n. 5 (1968) (per curiam); see also Hurley
v. Irish -American Gay, Lesbian and Bisexual Group of
Boston, Inc., 515 U. S. 557, 572 (1995) ("Provisions like
these are well within the State's usual power to enact
when a legislature has reason to believe that a given
group is the target of discrimination, and they do not, as
a general matter, violate the First or Fourteenth
Amendments").
When it comes to weddings, it can be assumed that a
member of the clergy who objects to gay marriage on
moral and religious grounds could not be compelled to
perform the ceremony without denial of his or her right
to the free exercise of religion. [*20] This refusal would
be well understood in our constitutional order as an
exercise of religion, an exercise that gay persons could
recognize and accept without serious diminishment to
their own dignity and worth. Yet 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.
It is unexceptional that Colorado law can protect gay
persons, just as it can protect other classes of
individuals, in acquiring whatever products and services
they choose on the same terms and conditions as are
offered to other members of the public. And there are no
doubt innumerable goods and services that no one
could argue implicate the First Amendment. Petitioners
conceded, moreover, that if a baker refused to sell any
goods or any cakes for gay weddings, that would be a
different matter and the State would have a strong case
under this Court's precedents that this would be a denial
of goods and services that went beyond any protected
rights of a [*211 baker who offers goods and services to
the general public and is subject to a neutrally applied
and generally applicable public accommodations law.
See Tr. of Oral Arg. 4-7, 10.
Phillips claims, however, that a narrower issue is
presented. He argues that he had to use his artistic
skills to make an expressive statement, a wedding
endorsement in his own voice and of his own creation.
As Phillips would see the case, this contention has a
significant First Amendment speech component and
implicates his deep and sincere religious beliefs. In this
context the baker likely found it difficult to find a line
where the customers' rights to goods and services
became a demand for him to exercise the right of his
own personal expression for their message, a message
he could not express in a way consistent with his
religious beliefs.
Phillips' dilemma was particularly understandable given
the background of legal principles and administration of
the law in Colorado at that time. His decision and his
actions leading to the refusal of service all occurred in
the year 2012. At that point, Colorado did not recognize
the validity of gay marriages performed in its own State.
See Colo. Const., Art. ll, §31 (2012); 370 P. 3d, at 277.
At the time of the events in [*22] question, this Court
had not issued its decisions either in United States v.
Windsor, 570 U. S. 744 (2013), or Obergefell. Since the
State itself did not allow those marriages to be
performed in Colorado, there is some force to the
argument that the baker was not unreasonable in
deeming it lawful to decline to take an action that he
understood to be an expression of support for their
validity when that expression was contrary to his
sincerely held religious beliefs, at least insofar as his
refusal was limited to refusing to create and express a
message in support of gay marriage, even one planned
to take place in another State.
At the time, state law also afforded storekeepers some
latitude to decline to create specific messages the
storekeeper considered offensive. Indeed, while
enforcement proceedings against Phillips were ongoing,
the Colorado Civil Rights Division itself endorsed this
proposition in cases involving other bakers' creation of
cakes, concluding on at least three occasions that a
baker acted lawfully in declining to create cakes with
decorations that demeaned gay persons or gay
Page 6 of 23
2018 U.S. LEXIS 3386, *22
marriages. See Jack v. Gateaux, Ltd., Charge No.
P20140071X (Mar. 24, 2015); Jack v. Le Bakery
Sensual, Inc., Charge No. P20140070X (Mar. [*23] 24,
2015); Jack v. Azucar Bakery, Charge No. P20140069X
(Mar. 24, 2015).
There were, to be sure, responses to these arguments
that the State could make when it contended for a
different result in seeking the enforcement of its
generally applicable state regulations of businesses that
serve the public. And any decision in favor of the baker
would have to be sufficiently constrained, lest all
purveyors of goods and services who object to gay
marriages for moral and religious reasons in effect be
allowed to put up signs saying "no goods or services will
be sold if they will be used for gay marriages,"
something that would impose a serious stigma on gay
persons. But, nonetheless, Phillips was entitled to the
neutral and respectful consideration of his claims in all
the circumstances of the case.
B
The neutral and respectful consideration to which
Phillips was entitled was compromised here, however.
The Civil Rights Commission's treatment of his case has
some elements of a clear and impermissible hostility
toward the sincere religious beliefs that motivated his
objection.
That hostility surfaced at the Commission's formal,
public hearings, as shown by the record. On May 30,
2014, the seven -member [*24] Commission convened
publicly to consider Phillips' case. At several points
during its meeting, commissioners endorsed the view
that religious beliefs cannot legitimately be carried into
the public sphere or commercial domain, implying that
religious beliefs and persons are less than fully welcome
in Colorado's business community. One commissioner
suggested that Phillips can believe "what he wants to
believe," but cannot act on his religious beliefs "if he
decides to do business in the state." Tr. 23. A few
moments later, the commissioner restated the same
position: "[I]f a businessman wants to do business in the
state and he's got an issue with the—the law's
impacting his personal belief system, he needs to look
at being able to compromise." Id., at 30. Standing alone,
these statements are susceptible of different
interpretations. On the one hand, they might mean
simply that a business cannot refuse to provide services
based on sexual orientation, regardless of the
proprietor's personal views. On the other hand, they
might be seen as inappropriate and dismissive
comments showing lack of due consideration for
Phillips' free exercise rights and the dilemma he faced.
In view of the comments that followed, [*25] the latter
seems the more likely.
On July 25, 2014, the Commission met again. This
meeting, too, was conducted in public and on the
record. On this occasion another commissioner made
specific reference to the previous meeting's discussion
but said far more to disparage Phillips' beliefs. The
commissioner stated:
"I would also like to reiterate what we said in the hearing
or the last meeting. Freedom of religion and religion has
been used to justify all kinds of discrimination
throughout history, whether it be slavery, whether it be
the holocaust, whether it be—I mean, we—we can list
hundreds of situations where freedom of religion has
been used to justify discrimination. And to me it is one of
the most despicable pieces of rhetoric that people can
use to—to use their religion to hurt others." Tr. 11-12.
To describe a man's faith as "one of the most
despicable pieces of rhetoric that people can use" is to
disparage his religion in at least two distinct ways: by
describing it as despicable, and also by characterizing it
as merely rhetorical—something insubstantial and even
insincere. The commissioner even went so far as to
compare Phillips' invocation of his sincerely held
religious beliefs [*26] to defenses of slavery and the
Holocaust. This sentiment is inappropriate for a
Commission charged with the solemn responsibility of
fair and neutral enforcement of Colorado's
antidiscrimination law—a law that protects
discrimination on the basis of religion as well as sexual
orientation.
The record shows no objection to these comments from
other commissioners. And the later state -court ruling
reviewing the Commission's decision did not mention
those comments, much less express concern with their
content. Nor were the comments by the commissioners
disavowed in the briefs filed in this Court. For these
reasons, the Court cannot avoid the conclusion that
these statements cast doubt on the fairness and
impartiality of the Commission's adjudication of Phillips'
case. Members of the Court have disagreed on the
question whether statements made by lawmakers may
properly be taken into account in determining whether a
law intentionally discriminates on the basis of religion.
See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
U. S. 520, 540-542 (1993); id., at 558 (Scalia, J.,
concurring in part and concurring in judgment). In this
case, however, the remarks were made in a very
Page 7 of 23
2018 U.S. LEXIS 3386, *26
different context—by an adjudicatory body deciding a
particular case.
Another indication of hostility [*27] is the difference in
treatment between Phillips' case and the cases of other
bakers who objected to a requested cake on the basis
of conscience and prevailed before the Commission.
As noted above, on at least three other occasions the
Civil Rights Division considered the refusal of bakers to
create cakes with images that conveyed disapproval of
same-sex marriage, along with religious text. Each time,
the Division found that the baker acted lawfully in
refusing service. It made these determinations because,
in the words of the Division, the requested cake
included "wording and images [the baker] deemed
derogatory," Jack v. Gateaux, Ltd., Charge No.
P20140071X, at 4; featured "language and images [the
baker] deemed hateful," Jack v. Le Bakery Sensual,
Inc., Charge No. P20140070X, at 4; or displayed a
message the baker "deemed as discriminatory, Jack v.
Azucar Bakery, Charge No. P20140069X, at 4.
The treatment of the conscience -based objections at
issue in these three cases contrasts with the
Commission's treatment of Phillips' objection. The
Commission ruled against Phillips in part on the theory
that any message the requested wedding cake would
carry would be attributed to the customer, [*28] not to
the baker. Yet the Division did not address this point in
any of the other cases with respect to the cakes
depicting anti -gay marriage symbolism. Additionally, the
Division found no violation of CADA in the other cases
in part because each bakery was willing to sell other
products, including those depicting Christian themes, to
the prospective customers. But the Commission
dismissed Phillips' willingness to sell "birthday cakes,
shower cakes, [and] cookies and brownies," App. 152,
to gay and lesbian customers as irrelevant. The
treatment of the other cases and Phillips' case could
reasonably be interpreted as being inconsistent as to
the question of whether speech is involved, quite apart
from whether the cases should ultimately be
distinguished. In short, the Commission's consideration
of Phillips' religious objection did not accord with its
treatment of these other objections.
Before the Colorado Court of Appeals, Phillips protested
that this disparity in treatment reflected hostility on the
part of the Commission toward his beliefs. He argued
that the Commission had treated the other bakers'
conscience -based objections as legitimate, but treated
his as illegitimate—thus sitting [*29] in judgment of his
religious beliefs themselves. The Court of Appeals
addressed the disparity only in passing and relegated its
complete analysis of the issue to a footnote. There, the
court stated that "[t]his case is distinguishable from the
Colorado Civil Rights Division's recent findings that [the
other bakeries] in Denver did not discriminate against a
Christian patron on the basis of his creed" when they
refused to create the requested cakes. 370 P. 3d, at
282. n. 8. In those cases, the court continued, there was
no impermissible discrimination because "the Division
found that the bakeries . . . refuse[d] the patron's
request . . . because of the offensive nature of the
requested message." Ibid.
A principled rationale for the difference in treatment of
these two instances cannot be based on the
government's own assessment of offensiveness. Just as
"no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other
matters of opinion," West Virginia Bd. of Ed. v. Barnette,
319 U. S. 624, 642 (1943), it is not, as the Court has
repeatedly held, the role of the State or its officials to
prescribe what shall be offensive. See Matal v. Tam,
582 U. S. - _ (2017) (opinion of Alito, J.) (slip
op., at 22-23). The Colorado court's attempt to account
for the difference in treatment elevates one [*30] view
of what is offensive over another and itself sends a
signal of official disapproval of Phillips' religious beliefs.
The court's footnote does not, therefore, answer the
baker's concern that the State's practice was to disfavor
the religious basis of his objection.
C
For the reasons just described, the Commission's
treatment of Phillips' case violated the State's duty
under the First Amendment not to base laws or
regulations on hostility to a religion or religious
viewpoint.
In Church of Lukumi Babalu Aye, supra, the Court made
clear that the government, if it is to respect the
Constitution's guarantee of free exercise, cannot impose
regulations that are hostile to the religious beliefs of
affected citizens and cannot act in a manner that passes
judgment upon or presupposes the illegitimacy of
religious beliefs and practices. The Free Exercise
Clause bars even "subtle departures from neutrality" on
matters of religion. Id., at 534. Here, that means the
Commission was obliged under the Free Exercise
Clause to proceed in a manner neutral toward and
tolerant of Phillips' religious beliefs. The Constitution
"commits government itself to religious tolerance, and
Page 8 of 23
2018 U.S. LEXIS 3386, *30
upon even slight suspicion that proposals for state
intervention stem from animosity to religion or distrust of
its practices, [*31] all officials must pause to remember
their own high duty to the Constitution and to the rights it
secures." Id., at 547.
Factors relevant to the assessment of governmental
neutrality include "the historical background of the
decision under challenge, the specific series of events
leading to the enactment or official policy in question,
and the legislative or administrative history, including
contemporaneous statements made by members of the
decisionmaking body." Id., at 540. In view of these
factors the record here demonstrates that the
Commission's consideration of Phillips' case was
neither tolerant nor respectful of Phillips' religious
beliefs. The Commission gave "every appearance," id.,
at 545, of adjudicating Phillips' religious objection based
on a negative normative "evaluation of the particular
justification" for his objection and the religious grounds
for it. Id., at 537. It hardly requires restating that
government has no role in deciding or even suggesting
whether the religious ground for Phillips' conscience -
based objection is legitimate or illegitimate. On these
facts, the Court must draw the inference that Phillips'
religious objection was not considered with the neutrality
that the Free Exercise Clause requires.
While the issues here [*32] are difficult to resolve, it
must be concluded that the State's interest could have
been weighed against Phillips' sincere religious
objections in a way consistent with the requisite
religious neutrality that must be strictly observed. The
official expressions of hostility to religion in some of the
commissioners' comments—comments that were not
disavowed at the Commission or by the State at any
point in the proceedings that led to affirmance of the
order—were inconsistent with what the Free Exercise
Clause requires. The Commission's disparate
consideration of Phillips' case compared to the cases of
the other bakers suggests the same. For these reasons,
the order must be set aside.
111
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. 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. In
this case the adjudication concerned a context that may
well be different going forward in the respects noted
above. However later cases raising these or
similar [*33] concerns are resolved in the future, for
these reasons the rulings of the Commission and of the
state court that enforced the Commission's order must
be invalidated.
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.
The judgment of the Colorado Court of Appeals is
reversed.
It is so ordered.
Concur by: KAGAN; GORSUCH; THOMAS
Concur
Justice Kagan, with whom Justice Breyer joins,
concurring.
"[I]t is a general rule that [religious and philosophical]
objections do not allow business owners and other
actors in the economy and in society to deny protected
persons equal access to goods and services under a
neutral and generally applicable public accommodations
law." Ante, at 9. But in upholding that principle, state
actors cannot show hostility to religious views; rather,
they must give those views "neutral and respectful
consideration." Ante, at 12. I join the Court's opinion in
full because I believe the Colorado Civil Rights [*34]
Commission did not satisfy that obligation. I write
separately to elaborate on one of the bases for the
Court's holding.
The Court partly relies on the "disparate consideration of
Phillips' case compared to the cases of [three] other
bakers" who "objected to a requested cake on the basis
of conscience." Ante, at 14, 18. In the latter cases, a
customer named William Jack sought "cakes with
images that conveyed disapproval of same-sex
marriage, along with religious text"; the bakers whom he
approached refused to make them. Ante, at 15; see
post, at 3 (Ginsburg, J., dissenting) (further describing
the requested cakes). Those bakers prevailed before
the Colorado Civil Rights Division and Commission,
Page 9 of 23
2018 U.S. LEXIS 3386, *34
while Phillips—who objected for religious reasons to
baking a wedding cake for a same-sex couple—did not.
The Court finds that the legal reasoning of the state
agencies differed in significant ways as between the
Jack cases and the Phillips case. See ante, at 15. And
the Court takes especial note of the suggestion made by
the Colorado Court of Appeals, in comparing those
cases, that the state agencies found the message Jack
requested "offensive [in] nature." Ante, at 16 (internal
quotation marks [*35] omitted). As the Court states, a
"principled rationale for the difference in treatment"
cannot be "based on the government's own assessment
of offensiveness." Ibid.
What makes the state agencies' consideration yet more
disquieting is that a proper basis for distinguishing the
cases was available—in fact, was obvious. The
Colorado Anti -Discrimination Act (CADA) makes it
unlawful for a place of public accommodation to deny
"the full and equal enjoyment" of goods and services to
individuals based on certain characteristics, including
sexual orientation and creed. Colo. Rev. Stat. §24-34-
601(2)(a) (2017). The three bakers in the Jack cases did
not violate that law. Jack requested them to make a
cake (one denigrating gay people and same-sex
marriage) that they would not have made for any
customer. In refusing that request, the bakers did not
single out Jack because of his religion, but instead
treated him in the same way they would have treated
anyone else—just as CADA requires. By contrast, the
same-sex couple in this case requested a wedding cake
that Phillips would have made for an opposite -sex
couple. In refusing that request, Phillips contravened
CADA's demand that customers receive "the full and
equal enjoyment" of [*36] public accommodations
irrespective of their sexual orientation. Ibid. The different
outcomes in the Jack cases and the Phillips case could
thus have been justified by a plain reading and neutral
application of Colorado law—untainted by any bias
against a religious belief.
** Justice Gorsuch disagrees. In his view, the Jack cases and
the Phillips case must be treated the same because the
bakers in all those cases "would not sell the requested cakes
to anyone." Post, at 4. That description perfectly fits the Jack
cases—and explains why the bakers there did not engage in
unlawful discrimination. But it is a surprising characterization
of the Phillips case, given that Phillips routinely sells wedding
cakes to opposite -sex couples. Justice Gorsuch can make the
claim only because he does not think a "wedding cake" is the
relevant product. As Justice Gorsuch sees it, the product that
Phillips refused to sell here—and would refuse to sell to
anyone—was a "cake celebrating same-sex marriage." Ibid.;
I read the Court's opinion as fully consistent with that
view. The Court limits its analysis to the reasoning of the
state agencies (and Court of Appeals)—"quite apart
from whether the [Phillips and Jack] cases should
ultimately be distinguished." Ante, at 15. And the Court
itself recognizes the principle that would properly
account for a difference in result between those cases.
Colorado law, the Court says, "can protect gay persons,
just as it can protect other classes of individuals, in
acquiring whatever products and services they choose
on the same terms and conditions as are offered to
other members of the public." Ante, at 10. For that
reason, Colorado can treat a baker who discriminates
based on sexual orientation differently from a baker who
does not discriminate on that or any other prohibited
ground. But only, as the Court rightly says, if the State's
decisions are not infected [*37] by religious hostility or
bias. I accordingly concur.
Justice Gorsuch, with whom Justice Alito joins,
concurring.
In Employment Div., Dept. of Human Resources of Ore.
v. Smith, this Court held that a neutral and generally
applicable law will usually survive a constitutional free
exercise challenge. 494 U. S. 872, 878-879 (1990).
Smith remains controversial in many quarters. Compare
see post, at 3, 6, 8-9. But that is wrong. The cake requested
was not a special "cake celebrating same-sex marriage." It
was simply a wedding cake—one that (like other standard
wedding cakes) is suitable for use at same-sex and opposite -
sex weddings alike. See ante, at 4 (majority opinion)
(recounting that Phillips did not so much as discuss the cake's
design before he refused to make it). And contrary to Justice
Gorsuch's view, a wedding cake does not become something
different whenever a vendor like Phillips invests its sale to
particular customers with "religious significance." Post, at 11.
As this Court has long held, and reaffirms today, a vendor
cannot escape a public accommodations law because his
religion disapproves selling a product to a group of customers,
whether defined by sexual orientation, race, sex, or other
protected trait. See Newman v. Piqgie Park Enterprises, Inc.,
390 U. S. 400, 402, n. 5 11968) (per curiam) (holding that a
barbeque vendor must serve black customers even if he
perceives such service as vindicating racial equality, in
violation of his religious beliefs); ante, at 9. A vendor can
choose the products he sells, but not the customers he
serves—no matter the reason. Phillips sells wedding cakes.
As to that product, he unlawfully discriminates: He sells it to
opposite -sex but not to same-sex couples. And on that basis—
which has nothing to do with Phillips' religious beliefs—
Colorado could have distinguished Phillips from the bakers in
the Jack cases, who did not engage in any prohibited
discrimination.
Page 10 of 23
2018 U.S. LEXIS 3386, *37
McConnell, The Origins and Historical Understanding of
Free Exercise of Religion, 103 Harv. L. Rev. 1409
)'1990), with Hamburger, A Constitutional Right of
Religious Exemption: An Historical Perspective, 60 Geo.
Wash. L. Rev. 915 (1992). But we know this with
certainty: when the government fails to act neutrally
toward the free exercise of religion, it tends to run into
trouble. Then the government can prevail only if it
satisfies strict scrutiny, showing that its restrictions on
religion both serve a compelling interest and are
narrowly tailored. Church of Lukumi Babalu Aye, Inc. v.
Hialeah, 508 U. S. 520, 546 (1993).
Today's decision respects these principles. As the Court
explains, the Colorado Civil Rights Commission failed to
act neutrally toward Jack Phillips's religious faith. Maybe
most notably, the Commission allowed three other
bakers to refuse a customer's request that would have
required them to violate their secular commitments. Yet
it denied the same accommodation [*38] to Mr. Phillips
when he refused a customer's request that would have
required him to violate his religious beliefs. Ante, at 14-
16. As the Court also explains, the only reason the
Commission seemed to supply for its discrimination was
that it found Mr. Phillips's religious beliefs "offensive."
Ibid. That kind of judgmental dismissal of a sincerely
held religious belief is, of course, antithetical to the First
Amendment and cannot begin to satisfy strict scrutiny.
The Constitution protects not just popular religious
exercises from the condemnation of civil authorities. It
protects them all. Because the Court documents each of
these points carefully and thoroughly, I am pleased to
join its opinion in full.
The only wrinkle is this. In the face of so much evidence
suggesting hostility toward Mr. Phillips's sincerely held
religious beliefs, two of our colleagues have written
separately to suggest that the Commission acted
neutrally toward his faith when it treated him differently
from the other bakers—or that it could have easily done
so consistent with the First Amendment. See post, at 4-
5, and n. 4 (Ginsburg, J., dissenting); ante, at 2-3, and
n. (Kagan, J., concurring). But, respectfully, I do not see
how we might [*39] rescue the Commission from its
error.
A full view of the facts helps point the way to the
problem. Start with William Jack's case. He approached
three bakers and asked them to prepare cakes with
messages disapproving same-sex marriage on religious
grounds. App. 233, 243, 252. All three bakers refused
Mr. Jack's request, stating that they found his request
offensive to their secular convictions. Id., at 231, 241,
250. Mr. Jack responded by filing complaints with the
Colorado Civil Rights Division. Id., at 230, 240, 249. He
pointed to Colorado's Anti -Discrimination Act, which
prohibits discrimination against customers in public
accommodations because of religious creed, sexual
orientation, or certain other traits. See ibid.; Colo. Rev.
Stat. §24-34-601(2)(a) (2017). Mr. Jack argued that the
cakes he sought reflected his religious beliefs and that
the bakers could not refuse to make them just because
they happened to disagree with his beliefs. App. 231,
241, 250. But the Division declined to find a violation,
reasoning that the bakers didn't deny Mr. Jack service
because of his religious faith but because the cakes he
sought were offensive to their own moral convictions.
Id., at 237, 247, 255-256. As proof, the Division pointed
to the fact that the bakers said they treated Mr. Jack
as [*40] they would have anyone who requested a cake
with similar messages, regardless of their religion. Id., at
230-231, 240, 249. The Division pointed, as well, to the
fact that the bakers said they were happy to provide
religious persons with other cakes expressing other
ideas. Id., at 237, 247, 257. Mr. Jack appealed to the
Colorado Civil Rights Commission, but the Commission
summarily denied relief. App. to Pet. for Cert. 326a -
331a.
Next, take the undisputed facts of Mr. Phillips's case.
Charlie Craig and Dave Mullins approached Mr. Phillips
about creating a cake to celebrate their wedding. App.
168. Mr. Phillips explained that he could not prepare a
cake celebrating a same-sex wedding consistent with
his religious faith. Id., at 168-169. But Mr. Phillips
offered to make other baked goods for the couple,
including cakes celebrating other occasions. Ibid. Later,
Mr. Phillips testified without contradiction that he would
have refused to create a cake celebrating a same-sex
marriage for any customer, regardless of his or her
sexual orientation. Id., at 166-167 ("I will not design and
create wedding cakes for a same-sex wedding
regardless of the sexual orientation of the customer").
And the record reveals that Mr. Phillips apparently
refused just such a request from [*41] Mr. Craig's
mother. Id., at 38-40, 169. (Any suggestion that Mr.
Phillips was willing to make a cake celebrating a same-
sex marriage for a heterosexual customer or was not
willing to sell other products to a homosexual customer,
then, would simply mistake the undisputed factual
record. See post, at 4, n. 2 (Ginsburg, J., dissenting);
ante, at 2-3, and n. (Kagan, J., concurring)).
Nonetheless, the Commission held that Mr. Phillips's
conduct violated the Colorado public accommodations
law. App. to Pet. for Cert. 56a -58a.
Page 11 of 23
2018 U.S. LEXIS 3386, *41
The facts show that the two cases share all legally
salient features. In both cases, the effect on the
customer was the same: bakers refused service to
persons who bore a statutorily protected trait (religious
faith or sexual orientation). But in both cases the bakers
refused service intending only to honor a personal
conviction. To be sure, the bakers knew their conduct
promised the effect of leaving a customer in a protected
class unserved. But there's no indication the bakers
actually intended to refuse service because of a
customer's protected characteristic. We know this
because all of the bakers explained without
contradiction that they would not sell the requested
cakes to anyone, [*42] while they would sell other
cakes to members of the protected class (as well as to
anyone else). So, for example, the bakers in the first
case would have refused to sell a cake denigrating
same-sex marriage to an atheist customer, just as the
baker in the second case would have refused to sell a
cake celebrating same-sex marriage to a heterosexual
customer. And the bakers in the first case were
generally happy to sell to persons of faith, just as the
baker in the second case was generally happy to sell to
gay persons. In both cases, it was the kind of cake, not
the kind of customer, that mattered to the bakers.
The distinction between intended and knowingly
accepted effects is familiar in life and law. Often the
purposeful pursuit of worthy commitments requires us to
accept unwanted but entirely foreseeable side effects:
so, for example, choosing to spend time with family
means the foreseeable loss of time for charitable work,
just as opting for more time in the office means
knowingly forgoing time at home with loved ones. The
law, too, sometimes distinguishes between intended
and foreseeable effects. See, e.g., ALI, Model Penal
Code §§1.13, 2.02(2)(a)(i) (1985); 1 W. LaFave,
Substantive Criminal Law §5.2(b), pp. 460-463 [*43] (3d
ed. 2018). Other times, of course, the law proceeds
differently, either conflating intent and knowledge or
presuming intent as a matter of law from a showing of
knowledge. See, e.g., Restatement (Second) of Torts
$8A (1965); Radio Officers v. NLRB, 347 U. S. 17, 45
(1954).
The problem here is that the Commission failed to act
neutrally by applying a consistent legal rule. In Mr.
Jack's case, the Commission chose to distinguish
carefully between intended and knowingly accepted
effects. Even though the bakers knowingly denied
service to someone in a protected class, the
Commission found no violation because the bakers only
intended to distance themselves from "the offensive
nature of the requested message." Craig v. Masterpiece
Cakeshop, Inc. 370 P. 3d 272, 282, n. 8 (Colo. App.
2015); App. 237, 247, 256; App. to Pet. for Cert. 326a -
331a; see also Brief for Respondent Colorado Civil
Rights Commission 52 ("Businesses are entitled to
reject orders for any number of reasons, including
because they deem a particular product requested by a
customer to be 'offensive"). Yet, in Mr. Phillips's case,
the Commission dismissed this very same argument as
resting on a "distinction without a difference." App. to
Pet. for Cert. 69a. It concluded instead that an "intent to
disfavor" a protected class of persons should be "readily
... presumed" from [*44] the knowing failure to serve
someone who belongs to that class. Id., at 70a. In its
judgment, Mr. Phillips's intentions were "inextricably tied
to the sexual orientation of the parties involved" and
essentially "irrational." Ibid.
Nothing in the Commission's opinions suggests any
neutral principle to reconcile these holdings. If Mr.
Phillips's objection is "inextricably tied" to a protected
class, then the bakers' objection in Mr. Jack's case must
be "inextricably tied" to one as well. For just as cakes
celebrating same-sex weddings are (usually) requested
by persons of a particular sexual orientation, so too are
cakes expressing religious opposition to same-sex
weddings (usually) requested by persons of particular
religious faiths. In both cases the bakers' objection
would (usually) result in turning down customers who
bear a protected characteristic. In the end, the
Commission's decisions simply reduce to this: it
presumed that Mr. Phillip harbored an intent to
discriminate against a protected class in light of the
foreseeable effects of his conduct, but it declined to
presume the same intent in Mr. Jack's case even
though the effects of the bakers' conduct were just as
foreseeable. Underscoring [*45] the double standard, a
state appellate court said that "no such showing" of
actual "animus"—or intent to discriminate against
persons in a protected class—was even required in Mr.
Phillips's case. 370 P. 3d, at 282.
The Commission cannot have it both ways. The
Commission cannot slide up and down the mens rea
scale, picking a mental state standard to suit its tastes
depending on its sympathies. Either actual proof of
intent to discriminate on the basis of membership in a
protected class is required (as the Commission held in
Mr. Jack's case), or it is sufficient to "presume" such
intent from the knowing failure to serve someone in a
protected class (as the Commission held in Mr. Phillips's
case). Perhaps the Commission could have chosen
either course as an initial matter. But the one thing it
Page 12 of 23
2018 U.S. LEXIS 3386, *45
can't do is apply a more generous legal test to secular
objections than religious ones. See Church of Lukumi
Babalu Aye, 508 U. S., at 543-544. That is anything but
the neutral treatment of religion.
The real explanation for the Commission's
discrimination soon comes clear, too—and it does
anything but help its cause. This isn't a case where the
Commission self-consciously announced a change in its
legal rule in all public accommodation cases. Nor is this
a case [*46] where the Commission offered some
persuasive reason for its discrimination that might
survive strict scrutiny. Instead, as the Court explains, it
appears the Commission wished to condemn Mr.
Phillips for expressing just the kind of "irrational" or
"offensive ... message" that the bakers in the first case
refused to endorse. Ante, at 16. Many may agree with
the Commission and consider Mr. Phillips's religious
beliefs irrational or offensive. Some may believe he
misinterprets the teachings of his faith. And, to be sure,
this Court has held same-sex marriage a matter of
constitutional right and various States have enacted
laws that preclude discrimination on the basis of sexual
orientation. But it is also true that no bureaucratic
judgment condemning a sincerely held religious belief
as "irrational" or "offensive" will ever survive strict
scrutiny under the First Amendment. In this country, the
place of secular officials isn't to sit in judgment of
religious beliefs, but only to protect their free exercise.
Just as it is the "proudest boast of our free speech
jurisprudence" that we protect speech that we hate, it
must be the proudest boast of our free exercise
jurisprudence that we protect religious [*47] beliefs that
we find offensive. See Metal v. Tam, 582 U. S. ,
(2017) (plurality opinion) (slip op., at 25) (citing United
States v. Schwimmer, 279 U. S. 644, 655 (1929)
(Holmes, J., dissenting)). Popular religious views are
easy enough to defend. It is in protecting unpopular
religious beliefs that we prove this country's
commitment to serving as a refuge for religious
freedom. See Church of Lukumi Babalu Aye, supra, at
547; Thomas v. Review Bd. of Indiana Employment
Security Div., 450 U. S. 707, 715-716 (1981); Wisconsin
v. Yoder, 406 U. S. 205, 223-224 (1972); Cantwell v.
Connecticut, 310 U. S. 296, 308-310 (1940).
Nor can any amount of after -the -fact maneuvering by
our colleagues save the Commission. It is no answer,
for example, to observe that Mr. Jack requested a cake
with text on it while Mr. Craig and Mr. Mullins sought a
cake celebrating their wedding without discussing its
decoration, and then suggest this distinction makes all
the difference. See post, at 4-5, and n. 4 (Ginsburg, J.,
dissenting). It is no answer either simply to slide up a
level of generality to redescribe Mr. Phillips's case as
involving only a wedding cake like any other, so the fact
that Mr. Phillips would make one for some means he
must make them for all. See ante, at 2-3, and n. (Kagan,
J., concurring). These arguments, too, fail to afford Mr.
Phillips's faith neutral respect.
Take the first suggestion first. To suggest that cakes
with words convey a message but cakes without words
do not—all in order to excuse the bakers in Mr. [*48]
Jack's case while penalizing Mr. Phillips—is irrational.
Not even the Commission or court of appeals purported
to rely on that distinction. Imagine Mr. Jack asked only
for a cake with a symbolic expression against same-sex
marriage rather than a cake bearing words conveying
the same idea. Surely the Commission would have
approved the bakers' intentional wish to avoid
participating in that message too. Nor can anyone
reasonably doubt that a wedding cake without words
conveys a message. Words or not and whatever the
exact design, it celebrates a wedding, and if the
wedding cake is made for a same-sex couple it
celebrates a same-sex wedding. See 370 P. 3d, at 276
(stating that Mr. Craig and Mr. Mullins "requested that
Phillips design and create a cake to celebrate their
same-sex wedding") (emphasis added). Like "an
emblem or flag," a cake for a same-sex wedding is a
symbol that serves as "a short cut from mind to mind,"
signifying approval of a specific "system, idea, [or]
institution." West Virginia Bd. of Ed. v. Barnette 319 U.
S. 624, 632 (1943). It is precisely that approval that Mr.
Phillips intended to withhold in keeping with his religious
faith. The Commission denied Mr. Phillips that choice,
even as it afforded the bakers in Mr. Jack's case the
choice to [*49] refuse to advance a message they
deemed offensive to their secular commitments. That is
not neutral.
Nor would it be proper for this or any court to suggest
that a person must be forced to write words rather than
create a symbol before his religious faith is implicated.
Civil authorities, whether "high or petty," bear no license
to declare what is or should be "orthodox" when it
comes to religious beliefs, id., at 642, or whether an
adherent has "correctly perceived" the commands of his
religion, Thomas, supra, at 716. Instead, it is our job to
look beyond the formality of written words and afford
legal protection to any sincere act of faith. See generally
Hurley v. Irish -American Gay, Lesbian and Bisexual
Group of Boston, Inc., 515 U. S. 557, 569 (1995) ("[T]he
Constitution looks beyond written or spoken words as
mediums of expression," which are "not a condition of
Page 13 of 23
2018 U.S. LEXIS 3386, *49
constitutional protection").
The second suggestion fares no better. Suggesting that
this case is only about "wedding cakes"—and not a
wedding cake celebrating a same-sex wedding—
actually points up the problem. At its most general level,
the cake at issue in Mr. Phillips's case was just a
mixture of flour and eggs; at its most specific level, it
was a cake celebrating the same-sex wedding of Mr.
Craig and Mr. Mullins. We are told here, however, to
apply a [*50] sort of Goldilocks rule: describing the cake
by its ingredients is too general; understanding it as
celebrating a same-sex wedding is too specific; but
regarding it as a generic wedding cake is just right. The
problem is, the Commission didn't play with the level of
generality in Mr. Jack's case in this way. It didn't
declare, for example, that because the cakes Mr. Jack
requested were just cakes about weddings generally,
and all such cakes were the same, the bakers had to
produce them. Instead, the Commission accepted the
bakers' view that the specific cakes Mr. Jack requested
conveyed a message offensive to their convictions and
allowed them to refuse service. Having done that there,
it must do the same here.
Any other conclusion would invite civil authorities to
gerrymander their inquiries based on the parties they
prefer. Why calibrate the level of generality in Mr.
Phillips's case at "wedding cakes" exactly—and not at,
say, "cakes" more generally or "cakes that convey a
message regarding same-sex marriage" more
specifically? If "cakes" were the relevant level of
generality, the Commission would have to order the
bakers to make Mr. Jack's requested cakes just as it
ordered Mr. Phillips [*51] to make the requested cake in
his case. Conversely, if "cakes that convey a message
regarding same-sex marriage" were the relevant level of
generality, the Commission would have to respect Mr.
Philips's refusal to make the requested cake just as it
respected the bakers' refusal to make the cakes Mr.
Jack requested. In short, when the same level of
generality is applied to both cases, it is no surprise that
the bakers have to be treated the same. Only by
adjusting the dials just right—fine-tuning the level of
generality up or down for each case based solely on the
identity of the parties and the substance of their views—
can you engineer the Commission's outcome, handing a
win to Mr. Jack's bakers but delivering a loss to Mr.
Phillips. Such results -driven reasoning is improper.
Neither the Commission nor this Court may apply a
more specific level of generality in Mr. Jack's case (a
cake that conveys a message regarding same-sex
marriage) while applying a higher level of generality in
Mr. Phillips's case (a cake that conveys no message
regarding same-sex marriage). Of course, under Smith
a vendor cannot escape a public accommodations law
just because his religion frowns on it. But for [*52] any
law to comply with the First Amendment and Smith, it
must be applied in a manner that treats religion with
neutral respect. That means the government must apply
the same level of generality across cases—and that did
not happen here.
There is another problem with sliding up the generality
scale: it risks denying constitutional protection to
religious beliefs that draw distinctions more specific than
the government's preferred level of description. To
some, all wedding cakes may appear indistinguishable.
But to Mr. Phillips that is not the case—his faith teaches
him otherwise. And his religious beliefs are entitled to no
less respectful treatment than the bakers' secular beliefs
in Mr. Jack's case. This Court has explained these
same points "[r]epeatedly and in many different
contexts" over many years. Smith, 494 U. S. at 887. For
example, in Thomas a faithful Jehovah's Witness and
steel mill worker agreed to help manufacture sheet steel
he knew might find its way into armaments, but he was
unwilling to work on a fabrication line producing tank
turrets. 450 U. S., at 711. Of course, the line Mr.
Thomas drew wasn't the same many others would draw
and it wasn't even the same line many other members
of the same faith would draw. Even so, the Court
didn't [*53] try to suggest that making steel is just
making steel. Or that to offend his religion the steel
needed to be of a particular kind or shape. Instead, it
recognized that Mr. Thomas alone was entitled to define
the nature of his religious commitments—and that those
commitments, as defined by the faithful adherent, not a
bureaucrat or judge, are entitled to protection under the
First Amendment. Id., at 714-716; see also United
States v. Lee, 455 U. S. 252, 254-255 (1982); Smith.
supra, at 887 (collecting authorities). It is no more
appropriate for the United States Supreme Court to tell
Mr. Phillips that a wedding cake is just like any other—
without regard to the religious significance his faith may
attach to it—than it would be for the Court to suggest
that for all persons sacramental bread is just bread or a
kippah is just a cap.
Only one way forward now remains. Having failed to
afford Mr. Philips's religious objections neutral
consideration and without any compelling reason for its
failure, the Commission must afford him the same result
it afforded the bakers in Mr. Jack's case. The Court
recognizes this by reversing the judgment below and
holding that the Commission's order "must be set
Page 14 of 23
2018 U.S. LEXIS 3386, *53
aside." Ante, at 18. Maybe in some future rulemaking or
case the Commission could adopt a new [*54]
"knowing" standard for all refusals of service and offer
neutral reasons for doing so. But, as the Court
observes, "[h]owever later cases raising these or similar
concerns are resolved in the future, ... the rulings of
the Commission and of the state court that enforced the
Commission's order" in this case "must be invalidated."
Ibid. Mr. Phillips has conclusively proven a First
Amendment violation and, after almost six years facing
unlawful civil charges, he is entitled to judgment.
Justice Thomas, with whom Justice Gorsuch joins,
concurring in part and concurring in the judgment.
I agree that the Colorado Civil Rights Commission
(Commission) violated Jack Phillips' right to freely
exercise his religion. As Justice Gorsuch explains, the
Commission treated Phillips' case differently from a
similar case involving three other bakers, for reasons
that can only be explained by hostility toward Phillips'
religion. See ante, at 2-7 (concurring opinion). The
Court agrees that the Commission treated Phillips
differently, and it points out that some of the
Commissioners made comments disparaging Phillips'
religion. See ante, at 12-16. Although the
Commissioners' comments are certainly disturbing, the
discriminatory [*55] application of Colorado's public -
accommodations law is enough on its own to violate
Phillips' rights. To the extent the Court agrees, I join its
opinion.
While Phillips rightly prevails on his free -exercise claim,
I write separately to address his free -speech claim. The
Court does not address this claim because it has some
uncertainties about the record. See ante, at 2.
Specifically, the parties dispute whether Phillips refused
to create a custom wedding cake for the individual
respondents, or whether he refused to sell them any
wedding cake (including a premade one). But the
Colorado Court of Appeals resolved this factual dispute
in Phillips' favor. The court described his conduct as a
refusal to "design and create a cake to celebrate [a]
same-sex wedding." Craig v. Masterpiece Cakeshop,
Inc., 370 P. 3d 272, 276 (2015); see also id., at 286
("designing and selling a wedding cake"); id., at 283
("refusing to create a wedding cake"). And it noted that
the Commission's order required Phillips to sell "`any
product [he] would sell to heterosexual couples, -
including custom wedding cakes. Id., at 286 (emphasis
added).
Even after describing his conduct this way, the Court of
Appeals concluded that Phillips' conduct was not
expressive and was not protected speech. It reasoned
that [*56] an outside observer would think that Phillips
was merely complying with Colorado's public -
accommodations law, not expressing a message, and
that Phillips could post a disclaimer to that effect. This
reasoning flouts bedrock principles of our free -speech
jurisprudence and would justify virtually any law that
compels individuals to speak. It should not pass without
comment.
The First Amendment, applicable to the States through
the Fourteenth Amendment, prohibits state laws that
abridge the "freedom of speech." When interpreting this
command, this Court has distinguished between
regulations of speech and regulations of conduct. The
latter generally do not abridge the freedom of speech,
even if they impose "incidental burdens" on expression.
Sorrell v. IMS Health Inc., 564 U. S. 552, 567 (2011). As
the Court explains today, public -accommodations laws
usually regulate conduct. Ante, at 9-10 (citing Hurley v.
Irish -American Gay, Lesbian and Bisexual Group of
Boston, Inc., 515 U. S. 557, 572 (1995)). "[A]s a general
matter," public -accommodations laws do not "target
speech" but instead prohibit "the act of discriminating
against individuals in the provision of publicly available
goods, privileges, and services." Id., at 572 (emphasis
added).
Although public -accommodations laws generally
regulate conduct, particular applications of them can
burden protected speech. When a public -
accommodations [*57] law "ha[s] the effect of declaring
.. speech itself to be the public accommodation," the
First Amendment applies with full force. Id., at 573;
accord, Boy Scouts of America v. Dale 530 U. S. 640,
657-659 (2000). In Hurley, for example, a
Massachusetts public -accommodations law prohibited
"`any distinction, discrimination or restriction on account
of ... sexual orientation ... relative to the admission of
any person to, or treatment in any place of public
accommodation.- 515 U. S., at 561 (quoting Mass. Gen.
Laws §272:98 (1992); ellipsis in original). When this law
required the sponsor of a St. Patrick's Day parade to
include a parade unit of gay, lesbian, and bisexual Irish -
Americans, the Court unanimously held that the law
violated the sponsor's right to free speech. Parades are
"a form of expression," this Court explained, and the
application of the public -accommodations law "alter[ed]
the expressive content" of the parade by forcing the
sponsor to add a new unit. 515 U. S., at 568, 572-573.
Page 15 of 23
2018 U.S. LEXIS 3386, *57
The addition of that unit compelled the organizer to
"bear witness to the fact that some Irish are gay,
lesbian, or bisexual"; "suggest ... that people of their
sexual orientation have as much claim to unqualified
social acceptance as heterosexuals"; and imply that
their participation "merits celebration." Id., at 574. While
this Court acknowledged [*58] that the unit's exclusion
might have been "misguided, or even hurtful," ibid., it
rejected the notion that governments can mandate
"thoughts and statements acceptable to some groups
or, indeed, all people" as the "antithesis" of free speech,
id., at 579; accord, Dale, supra, at 660-661.
The parade in Hurley was an example of what this Court
has termed "expressive conduct." See 515 U. S., at 568-
569. This Court has long held that "the Constitution
looks beyond written or spoken words as mediums of
expression," id., at 569, and that "[s]ymbolism is a
primitive but effective way of communicating ideas,"
West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 632
(1943). Thus, a person's "conduct may be 'sufficiently
imbued with elements of communication to fall within the
scope of the First and Fourteenth Amendments.- Texas
v. Johnson, 491 U. S. 397, 404 (1989). Applying this
principle, the Court has recognized a wide array of
conduct that can qualify as expressive, including nude
dancing, burning the American flag, flying an upside-
down American flag with a taped -on peace sign,
wearing a military uniform, wearing a black armband,
conducting a silent sit-in, refusing to salute the
American flag, and flying a plain red flag. 1
Of course, conduct does not qualify as protected speech
simply because "the person engaging in [it] intends
thereby to express an idea." United States v. O'Brien,
391 U. S. 367, 376 (1968). To [*59] determine whether
conduct is sufficiently expressive, the Court asks
whether it was "intended to be communicative" and, "in
context, would reasonably be understood by the viewer
to be communicative." Clark v. Community for Creative
Non -Violence, 468 U. S. 288, 294 (1984). But a
"'particularized message- is not required, or else the
1 Barnes v. Glen Theatre, Inc., 501 U. S. 560, 565-566 (1991);
Texas v. Johnson, 491 U. S. 397, 405-406 (1989); Spence v.
Washington, 418 U. S. 405, 406, 409-411 (1974) (per curiam);
Schacht v. United States, 398 U. S. 58, 62-63 (1970); Tinker v.
Des Moines Independent Community School Dist., 393 U. S.
503, 505-506 (1969); Brown v. Louisiana, 383 U. S. 131 141-
142 (1966) (opinion of Fortas, J.); West Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624, 633-634 (1943); Stromberg v.
California, 283 U. S. 359, 361, 369 (1931).
freedom of speech "would never reach the
unquestionably shielded painting of Jackson Pollock,
music of Arnold SchA¶enberg, or Jabberwocky verse of
Lewis Carroll." Hurley, 515 U. S., at 569.
Once a court concludes that conduct is expressive, the
Constitution limits the government's authority to restrict
or compel it. "[O]ne important manifestation of the
principle of free speech is that one who chooses to
speak may also decide 'what not to say" and "tailor" the
content of his message as he sees fit. Id., at 573
(quoting Pacific Gas & Elec. Co. v. Public Util. Comm'n
of Cal., 475 U. S. 1, 16 (1986) (plurality opinion)). This
rule "applies not only to expressions of value, opinion, or
endorsement, but equally to statements of fact the
speaker would rather avoid." Hurley, supra, at 573. And
it "makes no difference" whether the government is
regulating the "creati[on], distributi[on], or
consum[ption]" of the speech. Brown v. Entertainment
Merchants Assn., 564 U. S. 786, 792, n. 1 (2011).
I I
A
The conduct that the Colorado Court of Appeals
ascribed to Phillips—creating and designing custom
wedding cakes—is expressive. Phillips [*60] considers
himself an artist. The logo for Masterpiece Cakeshop is
an artist's paint palate with a paintbrush and baker's
whisk. Behind the counter Phillips has a picture that
depicts him as an artist painting on a canvas. Phillips
takes exceptional care with each cake that he creates—
sketching the design out on paper, choosing the color
scheme, creating the frosting and decorations, baking
and sculpting the cake, decorating it, and delivering it to
the wedding. Examples of his creations can be seen on
Masterpiece's website. See
http://masterpiececakes.com/wedding-cakes (as last
visited June 1, 2018).
Phillips is an active participant in the wedding
celebration. He sits down with each couple for a
consultation before he creates their custom wedding
cake. He discusses their preferences, their
personalities, and the details of their wedding to ensure
that each cake reflects the couple who ordered it. In
addition to creating and delivering the cake—a focal
point of the wedding celebration—Phillips sometimes
stays and interacts with the guests at the wedding. And
the guests often recognize his creations and seek his
bakery out afterward. Phillips also sees the inherent
symbolism in wedding cakes. To him, a wedding cake
inherently [*611 communicates that "a wedding has
Page 16 of 23
2018 U.S. LEXIS 3386, *61
occurred, a marriage has begun, and the couple should
be celebrated." App. 162.
Wedding cakes do, in fact, communicate this message.
A tradition from Victorian England that made its way to
America after the Civil War, "[w]edding cakes are so
packed with symbolism that it is hard to know where to
begin." M. Krondl, Sweet Invention: A History of Dessert
321 (2011) (Krondl); see also ibid. (explaining the
symbolism behind the color, texture, flavor, and cutting
of the cake). If an average person walked into a room
and saw a white, multi -tiered cake, he would
immediately know that he had stumbled upon a
wedding. The cake is "so standardised and inevitable a
part of getting married that few ever think to question it."
Charsley, Interpretation and Custom: The Case of the
Wedding Cake, 22 Man 93, 95 (1987). Almost no
wedding, no matter how spartan, is missing the cake.
See id., at 98. "A whole series of events expected in the
context of a wedding would be impossible without it: an
essential photograph, the cutting, the toast, and the
distribution of both cake and favours at the wedding and
afterwards." Ibid. Although the cake is eventually eaten,
that is not its primary purpose. [*62] See id., at 95 ("It is
not unusual to hear people declaring that they do not
like wedding cake, meaning that they do not like to eat
it. This includes people who are, without question,
having such cakes for their weddings"); id., at 97
("Nothing is made of the eating itself"); Krondl 320-321
(explaining that wedding cakes have long been
described as "inedible"). The cake's purpose is to mark
the beginning of a new marriage and to celebrate the
couple. 2
2The Colorado Court of Appeals acknowledged that "a
wedding cake, in some circumstances, may convey a
particularized message celebrating same-sex marriage,"
depending on its "design" and whether it has "written
inscriptions." Craig v. Masterpiece Cakeshop, Inc., 370 P. 3d
272, 288 (2015). But a wedding cake needs no particular
design or written words to communicate the basic message
that a wedding is occurring, a marriage has begun, and the
couple should be celebrated. Wedding cakes have long varied
in color, decorations, and style, but those differences do not
prevent people from recognizing wedding cakes as wedding
cakes. See Charsley, Interpretation and Custom: The Case of
the Wedding Cake, 22 Man 93, 96 (1987). And regardless, the
Commission's order does not distinguish between plain
wedding cakes and wedding cakes with particular designs or
inscriptions; it requires Phillips to make any wedding cake for
a same-sex wedding that he would make for an opposite -sex
wedding.
Accordingly, Phillips' creation of custom wedding cakes
is expressive. The use of his artistic talents to create a
well-recognized symbol that celebrates the beginning of
a marriage clearly communicates a message—certainly
more so than nude dancing, Barnes v. Glen Theatre,
Inc., 501 U. S. 560, 565-566 (1991), or flying a plain red
flag, Stromberg v. California, 283 U. S. 359, 369 (1931).
3 By forcing Phillips to create custom wedding cakes for
same-sex weddings, Colorado's public -accommodations
law "alter[s] the expressive content" of his message.
Hurley, 515 U. S., at 572. The meaning of expressive
conduct, this Court has explained, depends on "the
context in which it occur[s]." Johnson, 491 U. S., at 405.
Forcing Phillips to make custom wedding cakes for
same-sex marriages requires him to, at the very least,
acknowledge that same-sex weddings are "weddings"
and suggest that they should be celebrated—the
precise message he believes [*63] his faith forbids. The
First Amendment prohibits Colorado from requiring
Phillips to "bear witness to [these] fact[s]," Hurley, 515
U. S., at 574, or to "affir[m] ... a belief with which [he]
disagrees," id.. at 573.
B
The Colorado Court of Appeals nevertheless concluded
that Phillips' conduct was "not sufficiently expressive" to
be protected from state compulsion. 370 P. 3d, at 283. It
noted that a reasonable observer would not view
Phillips' conduct as "an endorsement of same-sex
marriage," but rather as mere "compliance" with
Colorado's public -accommodations law. Id., at 286-287
(citing Rumsfeld v. Forum for Academic and Institutional
3 The dissent faults Phillips for not "submitting ... evidence"
that wedding cakes communicate a message. Post, at 2, n. 1
(opinion of Ginsburg, J.). But this requirement finds no support
in our precedents. This Court did not insist that the parties
submit evidence detailing the expressive nature of parades,
flags, or nude dancing. See Hurley v. Irish -American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557,
568-570 (1995); Spence, 418 U. S., at 410-411; Barnes, 501
U. S., at 565-566. And we do not need extensive evidence
here to conclude that Phillips' artistry is expressive, see
Hurley, 515 U. S., at 569, or that wedding cakes at least
communicate the basic fact that "this is a wedding," see id., at
573-575. Nor does it matter that the couple also
communicates a message through the cake. More than one
person can be engaged in protected speech at the same time.
See id. at 569-570. And by forcing him to provide the cake,
Colorado is requiring Phillips to be "intimately connected" with
the couple's speech, which is enough to implicate his First
Amendment rights. See id., at 576.
Page 17 of 23
2018 U.S. LEXIS 3386, *63
Rights, Inc., 547 U. S. 47, 64-65 (2006) (FAIR);
Rosenberger v. Rector and Visitors of Univ. of Va., 515
U. S. 819, 841-842 (1995); PruneYard Shopping Center
v. Robins, 447 U. S. 74, 76-78 (1980)). It also
emphasized that Masterpiece could "disassociat[e]"
itself from same-sex marriage by posting a "disclaimer"
stating that Colorado law "requires it not to discriminate"
or that "the provision of its services does not constitute
an endorsement." 370 P. 3d, at 288. This reasoning is
badly misguided.
1
The Colorado Court of Appeals was wrong to conclude
that Phillips' conduct was not expressive because a
reasonable observer would think he is merely complying
with Colorado's public -accommodations law. This
argument would justify any law that compelled protected
speech. And, this Court has never accepted it. From the
beginning, this Court's compelled -speech precedents
have rejected arguments that "would resolve [*64]
every issue of power in favor of those in authority."
Barnette, 319 U. S., at 636. Hurley, for example, held
that the application of Massachusetts' public -
accommodations law "requir[ed] [the organizers] to alter
the expressive content of their parade." 515 U. S., at
572-573. It did not hold that reasonable observers would
view the organizers as merely complying with
Massachusetts' public -accommodations law.
The decisions that the Colorado Court of Appeals cited
for this proposition are far afield. It cited three decisions
where groups objected to being forced to provide a
forum for a third party's speech. See FAIR, supra, at 51
(law school refused to allow military recruiters on
campus); Rosenberger, supra, at 822-823 (public
university refused to provide funds to a religious student
paper); PruneYard, supra, at 77 (shopping center
refused to allow individuals to collect signatures on its
property). In those decisions, this Court rejected the
argument that requiring the groups to provide a forum
for third -party speech also required them to endorse that
speech. See FAIR, supra, at 63-65; Rosenberger,
supra, at 841-842; PruneYard, supra, at 85-88. But
these decisions do not suggest that the government can
force speakers to alter their own message. See Pacific
Gas & EIec., 475 U. S., at 12 ("Notably absent from
PruneYard was any concern that access . . . might
affect the shopping center owner's exercise of his own
right to [*65] speak"); Hurley, supra, at 580 (similar).
The Colorado Court of Appeals also noted that
Masterpiece is a "for-profit bakery" that "charges its
customers." 370 P. 3d, at 287. But this Court has
repeatedly rejected the notion that a speaker's profit
motive gives the government a freer hand in compelling
speech. See Pacific Gas & Elec., supra, at 8, 16
(collecting cases); Virginia Bd. of Pharmacy v. Virginia
Citizens Consumer Council, Inc., 425 U. S. 748, 761
(1976) (deeming it "beyond serious dispute" that
"[s]peech ... is protected even though it is carried in a
form that is 'sold' for profit"). Further, even assuming
that most for-profit companies prioritize maximizing
profits over communicating a message, that is not true
for Masterpiece Cakeshop. Phillips routinely sacrifices
profits to ensure that Masterpiece operates in a way that
represents his Christian faith. He is not open on
Sundays, he pays his employees a higher -than -average
wage, and he loans them money in times of need.
Phillips also refuses to bake cakes containing alcohol,
cakes with racist or homophobic messages, cakes
criticizing God, and cakes celebrating Halloween—even
though Halloween is one of the most lucrative seasons
for bakeries. These efforts to exercise control over the
messages that Masterpiece sends are still more
evidence that Phillips' conduct is expressive. See Miami
Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256-
258 (1974); Walker v. Texas Div., Sons of Confederate
Veterans, Inc., 576 U. S. (2015) (slip op., at
15).
2
The Colorado [*66] Court of Appeals also erred by
suggesting that Phillips could simply post a disclaimer,
disassociating Masterpiece from any support for same-
sex marriage. Again, this argument would justify any law
compelling speech. And again, this Court has rejected it.
We have described similar arguments as "beg[ging] the
core question." Tornillo, supra, at 256. Because the
government cannot compel speech, it also cannot
"require speakers to affirm in one breath that which they
deny in the next." Pacific Gas & EIec., 475 U. S., at 16;
see also id., at 15, n. 11 (citing PruneYard, 447 U. S., at
99 (Powell, J., concurring in part and concurring in
judgment)). States cannot put individuals to the choice
of "be[ing] compelled to affirm someone else's belief' or
"be[ing] forced to speak when [they] would prefer to
remain silent." Id., at 99.
III
Because Phillips' conduct (as described by the Colorado
Court of Appeals) was expressive, Colorado's public -
accommodations law cannot penalize it unless the law
withstands strict scrutiny. Although this Court
sometimes reviews regulations of expressive conduct
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2018 U.S. LEXIS 3386, *66
under the more lenient test articulated in O'Brien, 4 that
test does not apply unless the government would have
punished the conduct regardless of its expressive
component. See, e.g., Barnes, 501 U. S., at 566-572
(applying O'Brien to evaluate the application of a
general [*67] nudity ban to nude dancing); Clark, 468 U.
S., at 293 (applying O'Brien to evaluate the application
of a general camping ban to a demonstration in the
park). Here, however, Colorado would not be punishing
Phillips if he refused to create any custom wedding
cakes; it is punishing him because he refuses to create
custom wedding cakes that express approval of same-
sex marriage. In cases like this one, our precedents
demand "'the most exacting scrutiny.- Johnson, 491 U.
S., at 412; accord, Holder v. Humanitarian Law Project,
561 U. S. 1, 28 (2010).
The Court of Appeals did not address whether
Colorado's law survives strict scrutiny, and I will not do
so in the first instance. There is an obvious flaw,
however, with one of the asserted justifications for
Colorado's law. According to the individual respondents,
Colorado can compel Phillips' speech to prevent him
from "'denigrat[ing] the dignity- of same-sex couples,
"'assert[ing] [their] inferiority," and subjecting them to
"'humiliation, frustration, and embarrassment.- Brief for
Respondents Craig et al. 39 (quoting J. E. B. v.
Alabama ex rel. T. B., 511 U. S. 127, 142 (1994); Heart
of Atlanta Motel, Inc. v. United States, 379 U. S. 241,
292 (1964) (Goldberg, J., concurring)). These
justifications are completely foreign to our free -speech
jurisprudence.
States cannot punish protected speech because some
group finds it offensive, hurtful, stigmatic, unreasonable,
or undignified. [*68] "If there is a bedrock principle
underlying the First Amendment, it is that the
government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or
disagreeable." Johnson, supra, at 414. A contrary rule
would allow the government to stamp out virtually any
speech at will. See Morse v. Frederick, 551 U. S. 393,
409 (2007) ("After all, much political and religious
4 "[A] government regulation [of expressive conduct] is
sufficiently justified if it is within the constitutional power of the
Government; if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated
to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest."
United States v. O'Brien, 391 U. S. 367, 377 (1968).
speech might be perceived as offensive to some"). As
the Court reiterates today, "it is not ... the role of the
State or its officials to prescribe what shall be offensive."
Ante, at 16. "'Indeed, if it is the speaker's opinion that
gives offense, that consequence is a reason for
according it constitutional protection.- Hustler
Magazine, Inc. v. Falwell, 485 U. S. 46, 55 (1988);
accord, Johnson, supra, at 408-409. If the only reason a
public -accommodations law regulates speech is "to
produce a society free of . . . biases" against the
protected groups, that purpose is "decidedly fatal" to the
law's constitutionality, "for it amounts to nothing less
than a proposal to limit speech in the service of
orthodox expression." Hurley, 515 U. S., at 578-579;
see also United States v. Playboy Entertainment Group,
Inc., 529 U. S. 803, 813 (2000) ("Where the designed
benefit of a content -based speech restriction is to shield
the sensibilities of listeners, the general rule is that the
right of expression prevails"). "[A] speech burden based
on audience reactions [*69] is simply government
hostility ... in a different guise." Metal v. Tam, 582 U. S.
(2017) (Kennedy, J., concurring in part and
concurring in judgment) (slip op., at 4).
Consider what Phillips actually said to the individual
respondents in this case. After sitting down with them
for a consultation, Phillips told the couple, "'I'll make
your birthday cakes, shower cakes, sell you cookies and
brownies, I just don't make cakes for same sex
weddings.- App. 168. It is hard to see how this
statement stigmatizes gays and lesbians more than
blocking them from marching in a city parade,
dismissing them from the Boy Scouts, or subjecting
them to signs that say "God Hates Fags"—all of which
this Court has deemed protected by the First
Amendment. See Hurley, supra, at 574-575; Dale, 530
U. S., at 644; Snyder v. Phelps, 562 U. S. 443, 448
(2011). Moreover, it is also hard to see how Phillips'
statement is worse than the racist, demeaning, and
even threatening speech toward blacks that this Court
has tolerated in previous decisions. Concerns about
"dignity" and "stigma" did not carry the day when this
Court affirmed the right of white supremacists to burn a
25 -foot cross, Virginia v. Black, 538 U. S. 343 (2003);
conduct a rally on Martin Luther King Jr.'s birthday,
Forsyth County v. Nationalist Movement, 505 U. S. 123
0992); or circulate a film featuring hooded Klan
members who were brandishing weapons and
threatening to "'Bury the niggers," [*70] Brandenburg v.
Ohio, 395 U. S. 444, 446, n. 1 (1969) (per curiam).
Nor does the fact that this Court has now decided
Obergefell v. Hodges, 576 U. S. (2015), somehow
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2018 U.S. LEXIS 3386, *70
diminish Phillips' right to free speech. "It is one thing ..
to conclude that the Constitution protects a right to
same-sex marriage; it is something else to portray
everyone who does not share [that view] as bigoted"
and unentitled to express a different view. Id., at
(Roberts, C. J., dissenting) (slip op., at 29). This Court is
not an authority on matters of conscience, and its
decisions can (and often should) be criticized. The First
Amendment gives individuals the right to disagree about
the correctness of Obergefell and the morality of same-
sex marriage. Obergefell itself emphasized that the
traditional understanding of marriage "long has been
held—and continues to be held—in good faith by
reasonable and sincere people here and throughout the
world." Id., at (majority opinion) (slip op., at 4). If
Phillips' continued adherence to that understanding
makes him a minority after Obergefell, that is all the
more reason to insist that his speech be protected. See
Dale, supra, at 660 ("[T]he fact that [the social
acceptance of homosexuality] may be embraced and
advocated by increasing numbers of people is all the
more reason to protect the First Amendment rights of
those who wish to voice a different view"). [*711
In Obergefell, I warned that the Court's decision would
"inevitabl[y] ... come into conflict" with religious liberty,
"as individuals . . . are confronted with demands to
participate in and endorse civil marriages between
same-sex couples." 576 U. S., at (dissenting
opinion) (slip op., at 15). This case proves that the
conflict has already emerged. Because the Court's
decision vindicates Phillips' right to free exercise, it
seems that religious liberty has lived to fight another
day. But, in future cases, the freedom of speech could
be essential to preventing Obergefell from being used to
"stamp out every vestige of dissent" and "vilify
Americans who are unwilling to assent to the new
orthodoxy." Id., at (Alito, J., dissenting) (slip op., at
6). If that freedom is to maintain its vitality, reasoning
like the Colorado Court of Appeals' must be rejected.
Dissent by: GINSBURG
Dissent
Justice Ginsburg, with whom Justice Sotomayor joins,
dissenting.
There is much in the Court's opinion with which I agree.
"[I]t is a general rule that [religious and philosophical]
objections do not allow business owners and other
actors in the economy and in society to deny protected
persons equal access to goods and services under a
neutral and generally applicable public
accommodations [*72] law." Ante, at 9. "Colorado law
can protect gay persons, just as it can protect other
classes of individuals, in acquiring whatever products
and services they choose on the same terms and
conditions as are offered to other members of the
public." Ante, at 10. "[P]urveyors of goods and services
who object to gay marriages for moral and religious
reasons [may not] put up signs saying 'no goods or
services will be sold if they will be used for gay
marriages.- Ante, at 12. Gay persons may be spared
from "indignities when they seek goods and services in
an open market." Ante, at 18.5 I strongly disagree,
however, with the Court's conclusion that Craig and
5As Justice Thomas observes, the Court does not hold that
wedding cakes are speech or expression entitled to First
Amendment protection. See ante, at 1 (opinion concurring in
part and concurring in judgment). Nor could it, consistent with
our First Amendment precedents. Justice Thomas
acknowledges that for conduct to constitute protected
expression, the conduct must be reasonably understood by an
observer to be communicative. Ante, at 4 (citing Clark v.
Community for Creative Non -Violence, 468 U. S. 288, 294
j1984)). The record in this case is replete with Jack Phillips'
own views on the messages he believes his cakes convey.
See ante, at 5-6 (Thomas, J., concurring in part and
concurring in judgment) (describing how Phillips "considers"
and "sees" his work). But Phillips submitted no evidence
showing that an objective observer understands a wedding
cake to convey a message, much less that the observer
understands the message to be the baker's, rather than the
marrying couple's. Indeed, some in the wedding industry could
not explain what message, or whose, a wedding cake
conveys. See Charsley, Interpretation and Custom: The Case
of the Wedding Cake, 22 Man 93, 100-101 (1987) (no
explanation of wedding cakes' symbolism was forthcoming
"even amongst those who might be expected to be the
experts"); id., at 104-105 (the cake cutting tradition might
signify "the bride and groom ... as appropriating the cake"
from the bride's parents). And Phillips points to no case in
which this Court has suggested the provision of a baked good
might be expressive conduct. Cf. ante, at 7, n. 2 (Thomas, J.,
concurring in part and concurring in judgment); Hurley v. Irish -
American Gay, Lesbian, and Bisexual Group of Boston, Inc.,
515 U. S. 557, 568-579 (1995) (citing previous cases
recognizing parades to be expressive); Barnes v. Glen
Theatre, Inc., 501 U. S. 560, 565 (1991) (noting precedents
suggesting nude dancing is expressive conduct); Spence v.
Washington, 418 U. S. 405, 410 (1974) (observing the Court's
decades -long recognition of the symbolism of flags).
Page 20 of 23
2018 U.S. LEXIS 3386, *72
Mullins should lose this case. All of the above -quoted
statements point in the opposite direction.
The Court concludes that "Phillips' religious objection
was not considered with the neutrality that the Free
Exercise Clause requires." Ante, at 17. This conclusion
rests on evidence said to show the Colorado Civil Rights
Commission's (Commission) hostility to religion. Hostility
is discernible, the Court maintains, from the asserted
"disparate consideration of Phillips' case compared to
the cases of" three other bakers who refused to make
cakes requested [*73] by William Jack, an amicus here.
Ante, at 18. The Court also finds hostility in statements
made at two public hearings on Phillips' appeal to the
Commission. Ante, at 12-14. The different outcomes the
Court features do not evidence hostility to religion of the
kind we have previously held to signal a free -exercise
violation, nor do the comments by one or two members
of one of the four decisionmaking entities considering
this case justify reversing the judgment below.
On March 13, 2014—approximately three months after
the ALJ ruled in favor of the same-sex couple, Craig and
Mullins, and two months before the Commission heard
Phillips' appeal from that decision—William Jack visited
three Colorado bakeries. His visits followed a similar
pattern. He requested two cakes
"made to resemble an open Bible. He also
requested that each cake be decorated with Biblical
verses. [He] requested that one of the cakes
include an image of two groomsmen, holding
hands, with a red 'X' over the image. On one cake,
he requested [on] one side[,] ... `God hates sin.
Psalm 45:7' and on the opposite side of the cake
'Homosexuality is a detestable sin. Leviticus 18:2.'
On the second cake, [the one] with the [*74] image
of the two groomsmen covered by a red 'X' [Jack]
requested [these words]: 'God loves sinners' and
on the other side `While we were yet sinners Christ
died for us. Romans 5:8.- App. to Pet. for Cert.
319a; see id., at 300a, 310a.
In contrast to Jack, Craig and Mullins simply requested
a wedding cake: They mentioned no message or
anything else distinguishing the cake they wanted to buy
from any other wedding cake Phillips would have sold.
One bakery told Jack it would make cakes in the shape
of Bibles, but would not decorate them with the
requested messages; the owner told Jack her bakery
"does not discriminate" and "accept[s] all humans." Id.,
at 301a (internal quotation marks omitted). The second
bakery owner told Jack he "had done open Bibles and
books many times and that they look amazing," but
declined to make the specific cakes Jack described
because the baker regarded the messages as "hateful."
Id., at 310a (internal quotation marks omitted). The third
bakery, according to Jack, said it would bake the cakes,
but would not include the requested message. Id. at
319a. 6
Jack filed charges against each bakery with the
Colorado Civil Rights Division (Division). The Division
found no probable cause to support Jack's claims
of [*75] unequal treatment and denial of goods or
services based on his Christian religious beliefs. Id., at
297a, 307a, 316a. In this regard, the Division observed
that the bakeries regularly produced cakes and other
baked goods with Christian symbols and had denied
other customer requests for designs demeaning people
whose dignity the Colorado Antidiscrimination Act
(CADA) protects. See id., at 305a, 314a, 324a. The
Commission summarily affirmed the Division's no -
probable -cause finding. See id., at 326a -331a.
The Court concludes that "the Commission's
consideration of Phillips' religious objection did not
accord with its treatment of [the other bakers']
objections." Ante, at 15. See also ante, at 5-7 (Gorsuch,
J., concurring). But the cases the Court aligns are hardly
comparable. The bakers would have refused to make a
cake with Jack's requested message for any customer,
regardless of his or her religion. And the bakers visited
by Jack would have sold him any baked goods they
would have sold anyone else. The bakeries' refusal to
make Jack cakes of a kind they would not make for any
customer scarcely resembles Phillips' refusal to serve
Craig and Mullins: Phillips would not sell to Craig and
Mullins, for no reason other than [*76] their sexual
orientation, a cake of the kind he regularly sold to
others. When a couple contacts a bakery for a wedding
cake, the product they are seeking is a cake celebrating
their wedding—not a cake celebrating heterosexual
weddings or same-sex weddings—and that is the
service Craig and Mullins were denied. Cf. ante, at 3-4,
9-10 (Gorsuch, J., concurring). Colorado, the Court
does not gainsay, prohibits precisely the discrimination
Craig and Mullins encountered. See supra, at 1. Jack,
6 The record provides no ideological explanation for the
bakeries' refusals. Cf. ante, at 1-2, 9, 11 (Gorsuch, J.,
concurring) (describing Jack's requests as offensive to the
bakers' "secular" convictions).
Page 21 of 23
2018 U.S. LEXIS 3386, *76
on the other hand, suffered no service refusal on the
basis of his religion or any other protected
characteristic. He was treated as any other customer
would have been treated—no better, no worse. 7
The fact that Phillips might sell other cakes and cookies
to gay and lesbian customers 8 was irrelevant to the
issue Craig and Mullins' case presented. What matters
is that Phillips would not provide a good or service to a
same-sex couple that he would provide to a
heterosexual couple. In contrast, the other bakeries'
sale of other goods to Christian customers was relevant:
It shows that there were no goods the bakeries would
sell to a non-Christian customer that they would
refuse [*77] to sell to a Christian customer. Cf. ante, at
15.
Nor was the Colorado Court of Appeals' "difference in
treatment of these two instances . . . based on the
government's own assessment of offensiveness." Ante,
at 16. Phillips declined to make a cake he found
offensive where the offensiveness of the product was
determined solely by the identity of the customer
requesting it. The three other bakeries declined to make
cakes where their objection to the product was due to
the demeaning message the requested product would
literally display. As the Court recognizes, a refusal "to
'Justice Gorsuch argues that the situations "share all legally
salient features." Ante, at 4 (concurring opinion). But what
critically differentiates them is the role the customer's
"statutorily protected trait," ibid., played in the denial of service.
Change Craig and Mullins' sexual orientation (or sex), and
Phillips would have provided the cake. Change Jack's religion,
and the bakers would have been no more willing to comply
with his request. The bakers' objections to Jack's cakes had
nothing to do with "religious opposition to same-sex
weddings." Ante, at 6 (Gorsuch, J., concurring). Instead, the
bakers simply refused to make cakes bearing statements
demeaning to people protected by CADA. With respect to
Jack's second cake, in particular, where he requested an
image of two groomsmen covered by a red "X" and the lines
"God loves sinners" and "While we were yet sinners Christ
died for us," the bakers gave not the slightest indication that
religious words, rather than the demeaning image, prompted
the objection. See supra at 3. Phillips did, therefore,
discriminate because of sexual orientation; the other bakers
did not discriminate because of religious belief; and the
Commission properly found discrimination in one case but not
the other. Cf. ante, at 4-6 (Gorsuch, J., concurring).
8But see ante, at 7 (majority opinion) (acknowledging that
Phillips refused to sell to a lesbian couple cupcakes for a
celebration of their union).
design a special cake with words or images ... might
be different from a refusal to sell any cake at all." Ante,
at 2. 9 The Colorado Court of Appeals did not
distinguish Phillips and the other three bakeries based
simply on its or the Division's finding that messages in
the cakes Jack requested were offensive while any
message in a cake for Craig and Mullins was not. The
Colorado court distinguished the cases on the ground
that Craig and Mullins were denied service based on an
aspect of their identity that the State chose to grant
vigorous protection from discrimination. See App. to Pet.
for Cert. 20a, n. 8 [*78] ("The Division found that the
bakeries did not refuse [Jack's] request because of his
creed, but rather because of the offensive nature of the
requested message.... [T]here was no evidence that
the bakeries based their decisions on [Jack's] religion ..
. [whereas Phillips] discriminat[ed] on the basis of
sexual orientation."). I do not read the Court to suggest
that the Colorado Legislature's decision to include
certain protected characteristics in CADA is an
impermissible government prescription of what is and is
not offensive. Cf. ante, at 9-10. To repeat, the Court
affirms that "Colorado law can protect gay persons, just
as it can protect other classes of individuals, in acquiring
whatever products and services they choose on the
same terms and conditions as are offered to other
members of the public." Ante, at 10.
I I
Statements made at the Commission's public hearings
on Phillips' case provide no firmer support for the
9 The Court undermines this observation when later asserting
that the treatment of Phillips, as compared with the treatment
of the other three bakeries, "could reasonably be interpreted
as being inconsistent as to the question of whether speech is
involved." Ante, at 15. But recall that, while Jack requested
cakes with particular text inscribed, Craig and Mullins were
refused the sale of any wedding cake at all. They were turned
away before any specific cake design could be discussed. (It
appears that Phillips rarely, if ever, produces wedding cakes
with words on them—or at least does not advertise such
cakes. See Masterpiece Cakeshop, Wedding,
http://www.masterpiececakes.coml wedding -cakes (as last
visited June 1, 2018) (gallery with 31 wedding cake images,
none of which exhibits words).) The Division and the Court of
Appeals could rationally and lawfully distinguish between a
case involving disparaging text and images and a case
involving a wedding cake of unspecified design. The
distinction is not between a cake with text and one without,
see ante, at 8-9 (Gorsuch, J., concurring); it is between a cake
with a particular design and one whose form was never even
discussed.
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2018 U.S. LEXIS 3386, *78
Court's holding today. 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 to sell a wedding
cake to Craig and Mullins. The proceedings involved
several [*79] layers of independent decisionmaking, of
which the Commission was but one. See App. to Pet. for
Cert. 5a -6a. First, the Division had to find probable
cause that Phillips violated CADA. Second, the ALJ
entertained the parties' cross-motions for summary
judgment. Third, the Commission heard Phillips' appeal.
Fourth, after the Commission's ruling, the Colorado
Court of Appeals considered the case de novo. What
prejudice infected the determinations of the adjudicators
in the case before and after the Commission? The Court
does not say. Phillips' case is thus far removed from the
only precedent upon which the Court relies, Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520
'1993), where the government action that violated a
principle of religious neutrality implicated a sole
decisionmaking body, the city council, see id., at 526-
528.
***
For the reasons stated, sensible application of CADA to
a refusal to sell any wedding cake to a gay couple
should occasion affirmance of the Colorado Court of
Appeals' judgment. I would so rule.
End of Document
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