Let Them Eat ... Birthday Cake?

Posted by: Mike Naughton 3 years, 5 months ago


Cake Characterizations, Freedom of Speech and Free Exercise of Religion

The United States Supreme Court released its opinion and order regarding a dispute between a cake maker, Jack Phillips, and a same-sex couple seeking a cake from Mr. Phillips for their wedding celebration. Justice Kennedy, writing for the 7–2 majority, held that actions by the appellee Colorado Civil Rights Commission violated Mr. Phillips’ right to free exercise of religion, found in the first amendment of the U.S. Constitution.

Phillips, owner and operator of the Masterpiece Cakeshop, described in the syllabus as “an expert baker and devout Christian.” In 2012, Charlie Craig and Dave Mullins planned to marry. Although same-sex marriage was not then legally recognized in Colorado, the couple planned to marry in Massachusetts and sought a wedding cake from Mr. Phillips to celebrate the occasion. Phillips refused the couple’s request for a cake, stating he did not “‘create’ wedding cakes for same-sex weddings.” Alternatively, Phillips offered to sell other baked goods including birthday cakes.

Having their request for a wedding cake rejected, the couple filed a discrimination complain with the Colorado Civil Rights Division (the “Commission”). The Commission conducted an investigation and found probable cause existed that a violation of Colorado’s Anti-Discrimination Act had occurred by Phillips’ refusal to provide a wedding cake. The matter was referred to a Colorado Administrative Law Judge. Phillips argued that application of CADA would violate his First Amendment right to free speech, compelling him to apply his artistic talents to convey a message the he disagreed with. He also argued that his free exercise of religion would also be violated through CADA. The administrative law judge ruled ruled in favor of the couple. The Commission affirmed the decision. The matter was appealed to the Colorado Court of Appeals, which affirmed the decision. The Colorado Supreme Court declined to hear the matter. Phillips then appealed to the United States Supreme Court.

The Supreme Court found itself in a tight balancing act and its opinion was very narrowly tailored to this case. The Court recognized “[t]he freedoms asserted here are both freedom of speech and the free exercise of religion.”

The First Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Court alternatively stated that American society “has come to the recognition that gay persons and gay couples cannot be treated as outcasts or as inferior in dignity and worth.” The First Amendment stands to ensure that “religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Citing Obergefell v. Hodges, 576 U.S. ___ (2015). The Court criticized the lack of neutrality of the Commission, characterizing it as hostile “to a religion or religious viewpoint,” and that the Commission’s application of CADA in other cases was inconsistent with this matter.

The Court cautioned that although Phillips was entitled to a “neutral and respectful consideration,” any “decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to” place signs informing prospective clients that no goods or services will be sold if used for same-sex marriages.

The Supreme Court did not make broad sweeping statements about the content of the speech and exercise of religion. The Court did, however, hold that the government (i.e. Colorado and the Commission) analysis of competing first amendment claims must be viewed on a case-by-case basis.

This article can be found at my Medium page here.




There are currently no comments

New Comment


required (not published)





800 Cottageview Drive
Suite 1080
Traverse City, MI   49684

Phone: (231) 421-7076
Fax: (231) 613-4560