The award for most unsatisfying decision of the Supreme Court’s 2017–18 term goes to Masterpiece Cakeshop. Masterpiece Cakeshop is a bakery owned by Jack Phillips, a man whose religion holds same-sex marriage to be a sin. When a gay couple went into the bakery to order a wedding cake, Phillips refused. He was willing to sell other types of baked goods to LGBTQ customers, just not wedding cakes. The bakery is located in Colorado, a state with a public accommodations law that protects against sexual orientation discrimination, the Colorado Anti-Discrimination Act (CADA). The couple filed a charge with the Colorado Civil Rights Commission, which found the bakery to be in violation of CADA. See Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, No. 16-111, 584 U.S. _, slip op. at 3–5 (June 4, 2018). The case eventually found its way to the Supreme Court, where it was set up to be a battle between religious freedom and LGBTQ rights. It was argued as a Freedom of Speech case, but then decided as a Due Process case. Blah. The Bakery won, with the Court finding that the Commission was not neutral in its application of CADA. Id. at 18.

Phillips argued that his wedding cakes were speech. Id. at 7. Being forced to make a wedding cake for a gay couple would be compelled speech, and a violation of the First Amendment. Cue endless amusing discussion in briefs and oral argument about whether wedding hair is speech, can you eat speech, and whether a DJ’s spinning is art. See, e.g., Transcript of Oral Argument at 11–15, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, No. 16-111, 584 U.S. _ (Dec. 5, 2017).  This is the stuff that law school moot court is made of–endless opportunity for comparing and contrasting facts, a subject about which most of us are knowledgeable: cake!  Alas, the Court’s majority opinion, written by Justice Kennedy, completely skips speech. Not only does this leave the compelling question about cake unanswered, but it allowed the Court to bypass the conflict among free speech, religion, and anti-discrimination laws.

Instead, the Court made a procedural decision. It relied on a line of cases, starting with Employment Division, Department of Human Resources of Oregon. v. Smith, 494 U.S. 872 (1990), which emphasize neutrality in applying statutes that might burden religious exercise. Smith held that a generally applicable law (a law that is not designed to target a particular religion but applies to everyone–like an anti-discrimination law) that is applied neutrally is not a violation of the Free Exercise Clause. See Employment Div., 494 U.S. at 879. On the other hand, if a statute targets or burdens a specific religion or religious exercise, the Court would subject it to strict scrutiny. The Masterpiece Cakeshop Court found that the Commission enforcing the anti-discrimination law was not neutral for two reasons:

  1. the Commission enforced the law against Phillips but did not enforce it against three bakers (in separate cases) who refused to make cakes that said hateful things about gays; and,
  2. two of the Commissioners made comments about Phillips, noting that religion has been used to justify the Holocaust and slavery, and calling the use of religion to discriminate “despicable.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U.S. _, slip op. at 13 (June 4, 2018) (internal citations omitted).

A Commissioner commented, “[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. The Court found these comments to be evidence of hostility that would make a neutral and fair application of the law impossible. Id. at 18. Essentially the Court drew a procedural due process conclusion–if you are going to enforce CADA, you need to do so fairly.

The reaction in the media to this case, thanks in part to Justice Kennedy’s kind words about rights and dignity of gay persons, was “don’t worry.”  Id. at 9 (stating that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.”) The opinion emphasizes throughout that it is very narrow. The ruling should not eliminate the ability to enforce anti-discrimination laws in the face of religious objections. If the anti-discrimination laws are enforced fairly and the enforcing body keeps its comments to itself, the case turns out differently. At least that is the “this is so narrow” commentary.

This case is not as narrow as Kennedy claims. The other cases where the Colorado Commission allowed bakers to refuse to bake cakes are different from Phillips’ situation in important ways. As Justice Ginsburg’s dissent stated, those bakers would have refused to bake those hateful cakes for any customer, regardless of their religion. See Masterpiece Cakeshop, slip op. at 3–6 (Ginsburg, J., dissenting). The bakeries were not preferring or discriminating against the customers based on their religion. In contrast, Phillips refused to make the same cake he would make for any other customer, based solely on the couple’s sexual orientation. Phillips was refusing based on a protected class under Colorado law, the others were not. Also, what if those cases had not happened before the Masterpiece case? Those decisions by the Commission were essential to the Court’s ruling that the decision against Phillips was an unfair application of the law. What if right after the Commission ruled in another case the same way it did for Phillips? Is the Commission neutral then? It doesn’t make sense.

The second reason for the lack of neutrality was the comments of two Commissioners about Phillips. See Masterpiece Cakeshop, slip op. at 12. While admittedly inflammatory and unnecessary, I do not see the comments as evidence of a lack of due process. There are many layers of hearings and appeals in this process. The comments of two Commissioners should not be able to override a violation of an anti-discrimination law.  It reduces the neutrality inquiry to whether the Commissioners are smart enough to keep their mouths shut. It creates all sorts of strange incentives that are antithetical to a fair hearing and transparency. Further, if you look carefully at what the Commissioners said, the comments were not hostile to Phillips’s exercise of his religion. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U.S. _, slip op. at 12–14 (June 4, 2018). They were hostile to his use of religion to discriminate on the basis of sexual orientation. Id. That seems to be squarely in the Commissioners’ job description. Finally, as Justice Sotomayor points out in her scathing dissent in Trump v. Hawaii a couple weeks later, the Court feels free to use the Commissioners’ comments as evidence of discriminatory intent, while being unwilling to grant any credence to President Trump’s endless discriminatory tweets about Muslims and immigrants. See Trump v. Hawaii, No. 17-695, 585 U.S. _, slip op. at 12 (June 26, 2018) (Sotomayor, J., dissenting). This inconsistency suggests the Court is doing what Justice Scalia has complained about before: inconsistent reasoning to support a “result-oriented expedient.” See Lawrence v. Texas, 539 U.S. 558, 592 (2003) (Scalia, J., dissenting).

Masterpiece Cakeshop is disappointing because the Court did not address any of our questions about defining speech or how to resolve the conflict between anti-discrimination laws and religion. This is a legitimate conflict between two closely held values of this country and we need guidance. Justice Thomas was the only one to answer the questions in the case. See Masterpiece Cakeshop, slip op. at 2–8 (Thomas, J., concurring). I do not agree with most of what he said–wedding cakes are not the baker’s message. Any message belongs to the couple, at best. But at least Thomas addressed the hard issues.

I suspect that the liberal Justices had to leave out the real issues in the case because if the Court addressed them, they would have lost. So maybe Kagan and Breyer were saving us from a 5–4 ruling written by Gorsuch (known for his religious freedom jurisprudence, author of the lower court concurrence in Burwell v. Hobby Lobby that was essentially copied by the Supremes) that ruled that religious freedom trumps anti-discrimination law. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013).

Justice Kennedy cares deeply about his legacy and has authored all of the big LGBTQ rights cases. His language in Obergefell about love, marriage, and dignity still brings tears to my eyes every semester. Thus, Masterpiece Cakeshop hurts more when considered in light of Kennedy’s retirement. It was an opportunity to celebrate the rights of all people to be free from discrimination in their daily lives, as the Court tried to do for African-Americans in cases about lunch counters and BBQ joints. See, e.g. Newman v. Piggie Park Enters., Inc., 256 F. Supp. 941, 945 (D.S.C. 1966) (rejecting the argument that a restaurant owner “has a constitutional right to refuse to serve members of the Negro race in his business establishments”), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968); Katzenbach v. McClung, 379 U.S. 294 (1964) (ruling that Congress had power under the Commerce clause to forbid racial discrimination in restaurants). Although purportedly narrow, what Masterpiece Cakeshop may be remembered for is the missed opportunity by Justice Kennedy to cement his legacy.