The other side of the coin: The Supreme Court considers freedom of conscience in the light of Obergefell

We have previously looked at the United States Supreme Court’s decision in the case of Obergefell v. Hodges,1 in which the Court found that the rights embodied in the U.S. Constitution included a right for homosexuals to marry (“The Supreme Court Finds a Right to Homosexual Marriage [1-3],” Dec. 15, 2015; Feb. 1, 2016; May 15, 2016). As was noted at that time, when one such right is recognized, it raises the question of the limits of that right in relation to other recognized rights. The Supreme Court recently had an opportunity to look at the other side of the issue, the religious rights of those who believe homosexual practices and marriage are wrong. In early December 2017, the Court heard arguments in the case of Masterpiece Cakeshop Ltd., v. Colorado Civil Rights Commission,2 In this case, the clash is between the rights of homosexuals and the religious rights of a baker who refused to make a wedding cake celebrating a homosexual wedding. We will review the Masterpiece Cakeshop case, including the facts of the case, the arguments of the parties, and the Supreme Court’s statements in Obergefell that may give indication on how the Court will come out on this and similar cases.

The Masterpiece Cakeshop is a bakery in Lakewood, Colorado that makes cakes, including cakes to celebrate such events as weddings, anniversaries, and graduations. The bakery is a family-run business owned by Jack Phillips. Mr. Phillips had previously refused to create cakes that had a message that would conflict with his religious views, such as cakes with Halloween themes or that celebrated a divorce. In July 2012, a homosexual couple entered the bakery and indicated that they wished to order a custom cake for their wedding celebration. Jack Phillips indicated that they were welcome to purchase any other merchandise in the store, but that he could not custom design a cake promoting a same-sex wedding because of his religious beliefs. The couple left the store and ordered a cake at another business, but filed a complaint with the Colorado Civil Rights Commission. The bakery explained that it was not refusing to serve homosexuals, but that it was the message it could not convey. Nevertheless, the commission ordered the bakery to either make cakes for same-sex weddings or stop making wedding cakes altogether. Jack Phillips and his staff were required to go through a “re-education” program and fill out quarterly reports telling the government when they declined to make a cake and the reasons why.

The Alliance Defending Freedom began defending Jack Phillips, and on December 5, 2017, the case was argued before the Supreme Court. Lord willing, we will examine the ruling in a future article after the Supreme Court issues its decision. For now, we will examine the arguments made in this case, as they are significant for what they show us about the development of this line of case law.

The news in recent years has featured many stories about cases similar to this one, each involving a baker or florist or photographer who does not wish to participate in a homosexual wedding ceremony. It would be easy to dismiss these cases as having little or no significance for the church overall. However, one should not mistake the importance of this case for its effect on Christians in the years to come, as the Supreme Court’s ruling will have an impact on many areas besides the business that provides incidental services to weddings. Commentators on both sides of the issue have expressed the importance of the Supreme Court’s ruling in this case. As one law professor on the side of the anti-discrimination laws stated:

The case, though, is about more than just cake—it is an important and dangerous battle in the broader war between religion and speech rights that conservatives claim on one hand, and LGBT rights, contraceptive access and compliance with health-care laws on the other.3

To understand the importance of the Masterpiece Cakeshop case, it is helpful to go back to comments made by the Justices in their respective opinions in the Obergefell case. Justice Alito ended his dissenting opinion with the following warning:

Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.

Justice Alito was obviously contemplating the clash that would occur when the homosexual rights identified in Obergefell came into conflict with the religious freedoms of those who oppose homosexual marriage. As is often the case, Justice Anthony Kennedy was the deciding vote in Obergefell, siding with the four liberal justices. Justice Kennedy has been a strong proponent of freedom of religion as well as other rights, and he included the following language in his majority opinion, presumably to counter concerns such as those expressed by Justice Alito:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The 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, and to their own deep aspirations to continue the family structure they have long revered.

While this language seems reassuring, as Justice Alito also pointed out in his dissent:

I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

As this statement of Justice Alito points out, Justice Kennedy’s reassurance only indicates that believers will be able to “advocate” that same-sex marriage should not be condoned, “teach” these principles, and continue their family structure; but it does not mention the ability to carry out business or other activities in a way consistent with their faith. In other words, the question remains as to whether we can merely teach these truths or if the freedom of religion means we cannot be forced by the government to participate in practices we disagree with. This is the true issue at stake in the Masterpiece Cakeshop case.

The First Amendment protects both the Freedom of Religion and the Freedom of Speech. The arguments put forward by the attorneys for Masterpiece Cakeshop focus more on the Freedom of Speech, probably because the Supreme Court has found limitations on the Freedom of Religion, as in cases involving discrimination based on race, and cases involving the religious use of hallucinogens by Native Americans.4 Instead, they focused on the concept that forcing the bakery to make a cake for a same-sex wedding would force them to use their artistic talents to send a message contrary to their beliefs, that creating a cake for such a message would send the message that they condoned same-sex marriage when they do not. They pointed out that the bakery did not discriminate against homosexuals, as they would sell them products, but would not create a cake celebrating a same-sex wedding. The Trump administration’s solicitor general argued that letting the ruling stand would mean that an African-American sculptor could be forced to make a cross for a Ku Klux Klan event. The bakers also pointed out that the civil rights commission had previously considered whether bakers could refuse to create cakes with anti-homosexual marriage messages for opponents of same-sex marriage, and had ruled that they could.

Those arguing for the civil rights commission argued that, if discrimination against homosexuals was allowed on religious grounds, the same could apply to discrimination on the basis of race. In the past, some have attempted to use religious grounds to discriminate based on race, and the courts have found this impermissible. The attorneys for the bakery argued that discrimination based on race is different. In oral arguments, the Justices asked if there is a legal test that could be used to determine when discrimination is allowed on religious grounds, but such a test is difficult to delineate. Supporters of the civil rights commission ruling argued that to allow an exemption on religious grounds would threaten to undo the entire legal framework of anti-discrimination laws.

The second point that those on the side of the civil rights commission made is that the bakery is a public accommodation. Generally speaking, when a business or organization holds itself out as open to the public, it brings itself under the requirement to treat all members of the public equally. We have previously looked at the Burwell v. Hobby Lobby Stores5 case, in which the court found that the corporation could refuse to offer contraceptives in its health plan for religious reasons, even though the contraceptives were required by the Affordable Care Act.6 However, the Masterpiece Cakeshop case is different in that it involves discrimination against a class of people, rather than denial of benefits required by law.

The issue of public accommodations is very important to our churches and schools, as the same argument can be made if we open our facilities to the general public. For instance, if a school gymnasium is available for other groups to rent for parties or tournaments, the whole facility would likely be considered a public accommodation. This could have implications if individuals later seek to use those facilities for purposes we do not approve of, such as same-sex weddings. The public accommodation issue could also affect our ability to deny admission or employment to individuals whose lifestyles are contrary to Scripture.

As with the Obergefell case, Justice Kennedy is likely to be the deciding vote in the Masterpiece Bakeshop case. During the oral arguments, Justice Kennedy appeared to struggle with the two positions, on the one hand, being concerned about the effect of overturning the law on anti-discrimination laws and, on the other hand, being concerned that the state could bully those of religious beliefs. Both Justice Kennedy and Chief Justice Roberts seemed concerned that there must be tolerance on both sides, and that those claiming discrimination should also tolerate religious beliefs. Justice Kennedy commented that the state of Colorado had been neither “tolerant nor respectful of Mr. Phillips’ religious beliefs.”

A broad decision either for the civil rights commission or for Mr. Phillips could have far-reaching implications. It may be possible for the Court to narrowly tailor its ruling to the facts of this case. The Court could follow the argument that the work of the bakery in creating custom cakes is artistic speech, and provide protection under the Free Speech clause. Such a ruling would obviously leave many businesses exposed to legal attack, as only businesses that make an artistic statement in their work could claim protection. The Court could also find that the actions of the civil rights commission were heavy-handed, and that a more tolerant solution to the issue was warranted. If the Court does not make a broad religious exemption, but finds another path to provide relief to the bakery in this case, it all but assures that each situation will need to be litigated as the courts determine where to draw the line between the newfound rights of homosexuals and the rights of believers to refuse to take any actions condoning what they believe is a sinful lifestyle. We will look more closely at these issues when the Court issues its ruling in this case, Lord willing.


1 Obergefell v. Hodges, 576 U.S. ____; 135 S.Ct. 2584 (2015).

2 Masterpiece Cakeshop Ltd., v. Colorado Civil Rights Commission, United States Supreme Court, Docket No. 16-111.

3 Craig Konnoth, “No matter how the Masterpiece Cakeshop case is decided, gay rights win,” Washington Post, December 6, 2017.

4 Employment Div., Dept. Of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990).

5 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. (2014).

6 Brian Van Engen, “The Supreme Court Says Corporations Can Exercise Religion,” Standard Bearer, vol. 91, no. 1, (October 1, 2014), 16-18.