In Narrow ‘Masterpiece Cakeshop’ Decision Supreme Court Sides with Bakery While Recognizing Harms of Anti-LGBTQ Discrimination

By Adam Polaski • June 4, 2018 • 10:59 am

Today in a 7-2 opinion, the U.S. Supreme Court decided Masterpiece Cakeshop vs. Colorado Civil Rights Commission, ruling in favor of a bakery that refused to sell a cake to a same-sex couple but recognizing the dangers of anti-LGBTQ discrimination. The Court’s decision is limited specifically to this one case and calls into question actions from the Colorado Civil Rights Commission – but it leaves intact Colorado’s LGBTQ-inclusive nondiscrimination protections, as well as similar protections in 18 states and 200+ cities and towns.

The decision is best summed up by Justice Anthony Kennedy, who wrote the majority opinion:

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  decision maker 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 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.

Kennedy continued:

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 decision comes amid a nationwide conversation about the need for federal protections from discrimination based on sexual orientation and gender identity. Federal legislation, including the Equality Act, is currently pending in the United States Congress to correct this injustice.

“We Now Need to Double Down”

Masen Davis, Freedom for All Americans’ Chief Executive Officer, said today:

“Today’s ruling leaves in place nondiscrimination protections that are a cornerstone of our country’s promise to all Americans. Businesses open to the public must be open to all without sweeping, extraordinary exemptions based on who you are. The message to take from today’s ruling is that nondiscrimination laws remain important and powerful tools to fight stigma and inequality.  We now need to double down and work harder and faster than ever before to advance comprehensive nondiscrimination protections at the state and federal levels. Passing laws at the state level and in Congress is the best way we can ensure all LGBTQ Americans are thoroughly protected from discrimination, regardless of the state they call home.”

In his majority opinion, Justice Anthony Kennedy noted that, while a clergy member would have a religious right to refuse to perform a wedding to which they objected, “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.”  The problem in this particular case was that the statements and actions of the Commission “cast doubt on [its] fairness and impartiality.”  But, the Supreme Court affirmed the longstanding “general rule that [religious] 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.”

Concerns Unique to the Case

The plaintiffs in the case, same-sex couple Charlie Craig and David Mullins, were represented by our partners at the ACLU, and the bakery was represented by the Alliance Defending Freedom, an extremist organization working to chip away at basic protections for LGBTQ Americans.

Louise Melling, deputy legal director of the ACLU, explained today: “The court reversed the Masterpiece Cakeshop decision based on concerns unique to the case but reaffirmed its longstanding rule that states can prevent the harms of discrimination in the marketplace, including against LGBT people.”

At the heart of the case was the Alliance Defending Freedom’s ongoing crusade to undermine LGBTQ-inclusive nondiscrimination laws. In 18 states LGBTQ people are explicitly protected from discrimination based on sexual orientation and gender identity via state laws similar to Colorado’s. Today’s opinion does not grant ADF’s request – it narrowly sides with the Masterpiece Cakeshop bakery but does not grant a constitutional license to discriminate against LGBTQ people.

A Supermajority of Americans Know that Businesses Should Be #OpenToAll

It’s important to keep in mind the huge number of Americans who raised their voices and declared that businesses open to the public must be #OpenToAll. The Supreme Court doesn’t exist in a vacuum – and together, the LGBTQ movement worked to create a climate that empowered the Justices to understand the scourge of anti-LGBTQ discrimination and reject this “license to discriminate.” As our movement continues forward, we must continue to make the case for LGBTQ-inclusive nondiscrimination, every step of the way.  

A recent poll from the Public Religion Research Institute (PRRI) found that six in ten Americans (60%) oppose allowing a small business owner in their state to refuse products or services to gay or lesbian people if providing them would violate their religious beliefs.

Now, it’s time to strengthen our resolve and channel our energy into our vision of a future where no one faces discrimination because of who they are. Now more than ever, Americans must mobilize and organize, pressure elected officials to do the right thing, share their stories, and help move their friends and neighbors from a place of tacit support to a place where they are standing up and demanding equal treatment for LGBTQ people once and for all.

How FFAA Proudly Supported Efforts at the Court

Despite the outcome, Freedom for All Americans is proud to have supported a multitude of state and national efforts around the Masterpiece Cakeshop case. Here’s how:

  • Our Small Businesses Against LGBTQ Discrimination coalition launched in December 2017, including more than 1,200 small business owners from all 50 states who support nondiscrimination protections.
  • In October 2017 Freedom for All Americans supported the organizing efforts on three different “friend-of-the-court” briefs in the amicus briefing process.
    • Small Business Voices: One brief featured leading small business organizations in support of the Masterpiece plaintiffs, including Main Street Alliance and the American Independent Business Alliance. Collectively, more than 61,000 small businesses from across the country are represented on the brief. Read the brief here.
    • Faith Voices: FFAA also supported, in tandem with the Religious Institute and the National LGBTQ Task Force, the development and submission of a brief that brought together nearly 1,300 clergy from approximately 50 faith traditions across the country, representing half a million congregants. Read the brief here.
    • Mayors & Municipalities: Freedom for All Americans also organized through our Mayors Against LGBTQ Discrimination coalition, elevating the voices of municipal leaders in an amicus brief that included more than 150 mayors representing 50 million constituents from big cities and smaller municipalities across the country. Read the brief here.
  • Freedom for All Americans is a proud member of the #OpenToAll coalition, the nationwide public engagement campaign to build awareness and understanding about the ways in which nondiscrimination laws in the United States are under attack. As part of the coalition FFAA produced an animated video illustrating the harms of anti-LGBTQ discrimination and what could happen if the Justices ruled the wrong way. The video is narrated by Republican veteran and Emmy-winning TV host Montel Williams. Watch it here.
  • The weekend before oral argument in December 2017 Freedom for All Americans was proud to partner with the Religious Institute on the National Weekend of Prayer for LGBTQ Justice, during which 100 congregations came together in 31 states and the District of Columbia to pray for justice and recognize that while freedom of religion is vital, it doesn’t give anyone the right to discriminate, in Masterpiece Cakeshop.
  • On the day of oral argument Freedom for All Americans joined in a rally outside of the Supreme Court. Our CEO Masen Davis spoke to the significance of the case. Watch his speech below.

Other important legal cases concerning LGBTQ nondiscrimination are also working their way through the courts – learn about all of them here, in our Litigation Tracker.


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