Baker's refusal to bake gay wedding cake

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___; 138 S. Ct. 1719 (2018)


In a 7-2 decision, the US Supreme Court overturned a decision of the Colorado Civil Rights Commission (Commission) that a baker could not refuse to sell a wedding cake to a same-sex couple. Jack Phillips, owner of Colorado bakery, Masterpiece Cakeshop, had refused to bake a wedding cake for a same-sex couple because same-sex marriage conflicted with his religious views. The couple filed a complaint with the Commission on the basis that the refusal violated state anti-discrimination laws that prohibit businesses from discriminating against customers based on sexual orientation. The Commission ordered the baker to bake the cake. The baker appealed to the Court of Appeals which agreed with the Commission. The baker appealed to the US Supreme Court (Court), which overturned the Commission's decision on the basis that the Commission had not acted with the required neutrality towards religion.  

The Court did not take the opportunity to decide on broader issues, such as the overlap between the rights to free speech and religion, anti-discrimination laws and human rights.


Colorado Civil Rights Commission

The couple's complaint was successful. The Commission ordered the baker to sell wedding cakes to same-sex couples, change its policies and provide anti-discrimination training to staff. The baker refused and instead opted to stop baking wedding cakes.

Colorado Court of Appeals

The Court of Appeals agreed with the Commission's decision on the basis that creating a cake is not an exercise of free religion and religion does not relieve an individual from complying with general laws. It distinguished the case from an earlier decision involving three bakers who had refused to create a cake with the message 'Homosexuality is a detestable sin', because it was due to the offensiveness of the message (not religion). Masterpiece Cakeshop's refusal was due to religious opposition to same-sex marriage (and that was unlawful discrimination based on sexual orientation).

Petition to US Supreme Court

The baker petitioned the US Supreme Court to whether the Commission's order (to bake the cake) violated his constitutional rights to free speech or exercise of religion. The baker was supported by the US Department of Justice under President Trump who argued that anti-discrimination laws cannot be used to compel a business into expressing speech (including by providing goods or services) they do not agree with, without a business' ability to assert they do not agree with the expressions.


On 4 June 2018, the Court overturned the Court of Appeal's decision on the basis that it had violated its obligation to ensure that laws are applied in a manner neutral towards religion, because it had shown hostility towards the baker's religious views.

Justice Kennedy delivered the majority opinion, joined by Chief Justice Roberts and Justices Breyer, Alito, Kagan and Gorusch. Justices Kagan, Gorusch and Thomas filed concurring opinions. Justice Ginsburg (joined by Justice Sotomayor) dissented.

Majority opinion

The Court noted that the case involved balancing:

  1. Government's power to protect gay persons from discrimination in seeking goods and services; and

  2. The right of a person to exercise free speech and free religion.

The Commission had demonstrated non-neutrality towards religion by its statements, including comparing the baker to defences of slavery and the Holocaust.

Justice Kennedy commented that the decision might have been different if the Commission had acted with religious neutrality in assessing and determining the complaint.  

Justice Kagan distinguished the case from the earlier case because the three bakers' refusal was due to the offensive message, and they would have refused regardless of the customer's sexual preference.

Justice Gorsuch decided the Commission had not acted with religious neutrality because the only apparent reason for it finding there was discrimination was that it found the baker's religious views offensive. Justice Gorsuch stated that a wedding cake sends a symbolic message of celebration, and this message contradicted the baker's religious views and thus breached his free exercise right.

Justice Thomas agreed with the majority but wrote separately, stating that the baker's creation of wedding cakes was expressive, and it clearly communicated a message celebrating a marriage, and forcing him to bake the cake violated his right to free exercise of religion. It required the baker "to, at the very least, acknowledge that same-sex weddings are "weddings" and suggest that they should be celebrated – the precise message he believes his faith forbids.'

Dissenting opinion

Justice Ginsburg's dissented, finding the Commission had acted fairly, and emphasized the crucial factor as being the role of the customer's 'protected trait' in them being denied the service. Justice Ginsburg commented that the Commission had not been biased by ruling a different way in the earlier decision, because the three bakers' refusal was due to the offensiveness of the message, whereas Masterpiece Cakeshop's refusal was due to the couple's sexual orientation. The baker in this case refused to sell a good or service that he would have otherwise sold to the couple if they had been heterosexual.


The ruling gives a mixed outcome. The Court focused on the Commission's earlier decision involving the three bakers to decide that it had not acted with religious neutrality, rather than deciding on what constitutes an expressive act protected by the right to free speech and free exercise of religion. It remains unclear how the rights to free speech and exercise of religion operate when they conflict with laws. However, the case should clearly not be interpreted as giving businesses untrammeled freedom to refuse to provide goods or services to people based on sexual orientation (or other traits).

In the majority ruling, Justice Kennedy indicated that:

'[t]he 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 Universal Declaration of Human Rights states 'all humans are born free and equal in dignity and rights.' Despite this, every day LGBTI persons are subject to cruelty and discrimination based on sexual orientation or gender. The UN's new independent expert on sexual orientation and gender identity says 'urgent action is needed to stop violence and discrimination against LGBT people worldwide'.

The case is a reminder that despite the UN's recognition of sexual orientation as a human right, laws in some states still enable people to lawfully discriminate against people based on their sexual orientation. This exposes individuals not only to being refused public goods and services, but in some countries, it exposes individuals to the risk of arrest, prosecution, imprisonment and even the death penalty.

State laws often do not adequately protect the human right of LGBTI people from discrimination. This means that until laws change, cultural or religious attitudes against the rights of LGBTI people can prevail over the human right to be protected from discrimination based on sexual orientation.

Stephanie Burn is a Senior Associate at Allens.