The cake issue is solved. But questions about the reaches of protections for religious freedom versus protections for gay rights remain unanswered.
Using a very narrow reading of the facts of the case, the Supreme Court on Monday ruled 7-2 in favor of a Colorado baker who refused to make a wedding cake for a same-sex couple. The ruling, however, still leaves a major question unanswered, according to Northeastern law professor Dan Urman: “Is this a case about cake or about the people trying to buy a cake?”
The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which legal scholars anticipated could set a precedent for either First Amendment protection or gay rights, did neither. Instead, the close reading of case proceedings amounted to a “punt,” said Urman, who teaches courses on Constitutional law and the U.S. Supreme Court.
“This issue is not resolved,” he said. “I’m certain there will be lots of lawsuits that will emerge in state and federal courts around the nation that will test the limits of this ruling.”
The majority ruling, written by Justice Anthony M. Kennedy, hinged on the initial treatment of the case by a Colorado civil rights commission.
It said that the Colorado Civil Rights Commission—to which the cake-seeking couple had first taken the issue back in 2012—had violated the baker’s Constitutional protection of religious freedom by being openly hostile to his sincerely-held religious beliefs. It was through the legal appeals process that the case made its way from the Colorado Civil Rights Commission to the Supreme Court.
Kennedy’s opinion said that the Colorado Civil Rights Commission showed “some elements of clear and impermissible hostility toward the sincere religious beliefs” that prompted Jack Phillips, the baker, to turn away Charlie Craig and David Mullins, the couple who sought a cake.
Kennedy added that in discussing Philiips’ case, commissioners compared his defense of his religious beliefs to “defenses of slavery and the Holocaust.”
By focusing so heavily on how Phillips was treated by the commission, as Urman put it, the ruling “focuses on government treatment of the baker rather than the baker’s treatment of the gay couple.”
While Phillips’ treatment is a valid and important consideration, it misses the larger point, according to the dissenting opinion written by justice Ruth Bader Ginsburg and signed by justice Sonia Sotomayor.
“What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple,” Ginsburg wrote in her dissent.
The point they make is that Craig and Mullins were denied a wedding cake because they were a same-sex couple. The cake they asked for was neither pro- nor anti-same-sex marriage, but rather a same-sex couple seeking a standard wedding cake. Were it a man and a woman who walked into the bakery that day, Urman said, it would seem they would not have been turned away.
What’s missing from the majority opinion, Urman said, is any focus on the couple who were denied service. In addition to Ginsburg’s dissent, one can see the debate play out a bit in other written concurrences from some of the majority justices, he said.
“The battle we can see emerging is: Is this a case about cake or about the people trying to buy a cake? And it’s clear that if a man and a woman walked into the Masterpiece Cakeshop, they would not have had a problem purchasing a cake. The identity of the people is what this law is about, and that’s Justice Kagan’s larger distinction in her concurrence.”
So, although Kagan joined the majority opinion, her distinction is clear: Phillips was not granted freedom to express his religious beliefs by the commission that first heard this case. But he still discriminated against Craig and Mullins by refusing to make them a cake.
“Kagan makes a clear point: The law is not a cake-protecting law, the law is that businesses need to treat gay and straight people the same way,” Urman said.