On Monday, June 4, 2018, the United States Supreme Court issued its ruling in Masterpiece Cake Shop Ltd, et al. v. Colorado Civil Rights Commission, et al. Case No. 16-111 in which it ruled in favor of a Christian baker who had refused to bake a custom wedding cake ordered by a same-sex couple in the State of Colorado. As an aside, it is interesting to note that while this Case has been pending for at least six (6) years, at the time that the same-sex couple (Messiers Craig and Mullins) wanted to place their cake order, same-sex marriages were illegal in the State of Colorado. In point of fact, they planned to wed in Massachusetts and host a reception afterwards in Denver.

While the Supreme Court, in a 7-2 Decision (Alito, Breyer, Gorsuch, Kagan, Kennedy, Roberts and Thomas in the majority; Ginsberg and Sotomayor in the minority), decided the Case on very narrow grounds, it left clearly open questions concerning the First Amendment and religious objections to same-sex marriages for another day.

The Court held that the members of the Colorado Civil Rights Commission had displayed “an extreme hostility to religion” when adjudicating the alleged discrimination claims against Mr. Phillips, the owner of the Lakewood, Colorado Masterpiece Cake Shop, who had refused to make one of his custom wedding cakes for the same-sex couple, but did offer to allow them to purchase other items from his shop. The Court seemed to hinge its decision on the fact that a Commissioner by the name of Diann Rice, at the time of the Hearing, stated that:

“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, and to me it is one of the most despicable pieces of rhetoric that people can use.”

The Court seemed to grab on to this rhetoric in a way to avoid deciding the more important issues of First Amendment and religious objection to same-sex marriages.

In point of fact, the Court indicated that the commentary of representatives of the Civil Rights Commission and the fact that no other Commissioner took issue with those comments was a basis to establish that those remarks evidenced a bias against religion that, in and of itself, violated the First Amendment Free Exercise Clause:

“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 Court also seemed to take to task the Colorado Human Rights Commission predicated on their divergent decisions regarding three (3) other matters (Jack v. Gateaux, Ltd.; Jack v. Le Bakery Sensual, Inc. and Jack v. Azucar Bakery). In those Cases, one William Jack visited the three (3) bakeries and requested that two (2) cakes be made to resemble an open bible and to, using various bible verses, cast aspersion on same sex couples. In the Jack Cases, the bakers, while not refusing to make “Bible cakes”, indicated that the other requested language was “hateful”. When the bakeries refused to produce the cake, Mr. Jack filed his various discrimination charges and the Colorado Civil Rights Commission found that there was no probable cause to support Mr. Jack’s claim of unequal treatment and the denial of goods or services based on his Christian religious beliefs. Obviously, the decisions by the Colorado Civil Rights Commission in these two (2) separate and distinct matters seem to be in direct conflict.

While the Commission ruled against Mr. Phillips, in part on the theory that “any message on the requested wedding cake would be attributable to the customer and not the baker”, they did not address nor comment on that issue in the Jack Cases.

Obviously, the continuing issue of LGBTQ rights and religious rights will continue and one must hope that someday the United States Supreme Court will eventually issue a viable decision on that point.

Questions? Contact Attorney Walter J. Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com