Potential Outcomes in Supreme Court Wedding Cake Case

Tuesday, December 5, the U.S. Supreme Court will hear arguments in a difficult case that pits the free exercise of religion and free speech rights of a wedding cake maker against the anti-discrimination rights of a same-sex couple. The couple demands the cake; the baker refuses because he thinks he will be sinning. The question is – can the state of Colorado make him bake the cake?

Thousands of pages of briefs have been generated on the various aspects of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, but I wanted to highlight a couple of key issues. There is always the risk that somebody will read this and say that it ignores some case law, a particular legal argument, or a hypothetical analogy, but most of those things have already been written. Here are what I consider to be some of the key issues, and, in case you’re wondering, I have no idea how the Court is going to untangle this surprisingly complex case.

Free Exercise Argument, Jurisdiction, and Precedent

The baker violated a Colorado state anti-discrimination law, as interpreted by the state’s civil rights commission. If the Court upholds the state law, it would not automatically affect the rights of business owners in other states, or under federal law.

When it comes to the free exercise of religion, the Court has ruled that states have broad discretion to enact laws that apply to everyone, legally phrased as a “neutral law of general applicability.” In 1990, the late Justice Antonin Scalia wrote the majority opinion in Employment Division v. Smith that said the state of Oregon could deny unemployment benefits to Native Americans who had used peyote during religious ceremonies. Scalia argued, in essence, that the employees had tried to use religion as an excuse to get around the neutral, generally applicable ban on possession of peyote. Scalia stated that allowing an individual to be exempt from such laws because of religion would permit him, “by virtue of his beliefs, ‘to become a law unto himself.’” Requiring the state to come up with a “compelling interest” before refusing an exemption “would lead towards anarchy,” Scalia wrote.

Scalia apparently did not think highly of the rights of a religious minority, coming close to calling them legal anarchists, and the alarm bells went off at the time regarding the impact on a wide variety of “mainstream” issues. Caution is wise when a problematic decision is defended with a “What’s the worst that can happen?”

In 1993, Congress sought to overturn the Supreme Court’s opinion in Smith by reinstating the “compelling state interest” rule, and the resulting Religious Freedom Restoration Act (RFRA) was signed into law by President Clinton.

In 1997, the Court ruled that Congress did not have the power to apply RFRA to the states in Boerne v. Flores, but maintained that it still applied to actions of the federal government.

Fast forward to 2014 where the Supreme Court applies RFRA in Hobby Lobby and rules that the closely-held private company with tens of thousands of employees does not need to comply with the contraception mandate of the federal Affordable Care Act because it offends the free exercise of religion rights of the owners.

And, at the same time, while the owners of Hobby Lobby are free to ignore a federal law that violates their beliefs, we have Mr. Phillips, the owner of a small business, who is beholden to the laws of the state of Colorado.

If the Court rules that he has a free exercise right not to make a wedding cake for a same-sex couple, it would have to overturn both Smith (1990) and Boerne (1997) unless it could otherwise determine that Colorado made a mistake in how it applied its own law.

If the Court finds that the state of Colorado properly applied its own law, but that the law should not apply to the baker, it will be a major turning point in free exercise jurisprudence and reverse 27 years of precedent.

If the Court finds that Colorado has the right to compel Mr. Phillips to make the cake, and that it does not have jurisdiction to address the state-level free exercise dispute, then the case will likely only apply to jurisdictions that meet two criteria – first they do not have state-level RFRAs and secondly they have state anti-discrimination laws. Under that scenario, Mr. Phillips would need to convince the Colorado legislature to carve out an exception for him in state law if he wished to continue to bake only those cakes which he felt comported with his religious beliefs.

Sincerity of Belief

In discussing the case, some have said that they do not believe that Mr. Phillips correctly interpreted the Bible when it comes to whether or not he would be theologically complicit with same-sex marriage if he chose to bake a cake for a same-sex wedding.

While the question, “What would Jesus do?” is relevant to practicing Christians as they contemplate the issue, they should not anticipate that the state would establish their interpretation as the correct view. That would violate the Establishment Clause. So while people can debate how they would personally respond, this rationale should not be attributed to the government.

Earlier this year, the U.S. Court of Appeals for the Fourth Circuit issued a ruling in the case of an employee of an energy company who had refused to submit to a biometric hand scan for religious reasons (EEOC v. Consol Energy, Inc., 860 F.3d 131 (4th Cir. 2017). The employee, who said he was “a life-long evangelical Christian” believed that participating would give him the apocalyptic “Mark of the Beast” even though his pastor disagreed with his interpretation. The EEOC sued the employer, alleging that the employer’s failure to accommodate the employee’s religious beliefs by using an alternative to the hand scan violated Title VII of the Civil Rights Act of 1964. At trial, the jury ruled in favor of the EEOC, and the Fourth Circuit affirmed the decision.

The Fourth Circuit said that theological correctness or general acceptance of a belief was not the criteria for determining whether the belief was legitimate. Instead, the Fourth Circuit said that beliefs should only be evaluated for sincerity. The court wrote, “It is not [the employer’s] place as an employer, nor ours as a court, to question the correctness or even the plausibility of [the employee’s] religious understandings.” Consol, 860 F.3d at 142. (See also Kaite v. Unemployment Compensation Board of Review, (PACommnw. Ct., Nov. 29, 2017).

The Fourth Circuit also said that the fact that the pastor disagreed with his interpretation was irrelevant: “{Employee’s] religious beliefs are protected whether or not his pastor agrees with them.…So long as there is sufficient evidence that [employee’s] beliefs are sincerely held … and conflict with [employer’s] employment requirement, that is the end of the matter.” Consol at 142-43.

If the Supreme Court decides to adopt this line of reasoning, and the Court’s own precedent suggests it will, then the analysis of Mr. Phillips’ religious beliefs will turn on whether or not his beliefs are sincere. If they are sincere, the analysis would end there.

Colorado’s Different Treatment of Cakes – Bad Cakes and Good Cakes

Jack Phillips’ refusal to make a wedding cake is not the only Colorado cake case to gain media attention. In 2016, the Colorado Civil Rights Division ruled that Majorie Silva, the owner of Azucar Bakery in Denver had the right to refuse to make two cakes with anti-gay imagery and derogatory language.

In 2014, Silva told the customer that she would sell him icing and a pastry bag so he could decorate the cake however he wanted, but because she had refused to do the decorating, she was hit with a religious discrimination complaint. She said that the reason she had refused was that the customer’s request was based on “derogatory language and imagery” instead of a religious argument.

Some who are defending Phillips say that this represents an inconsistent result, while others can credibly argue that there is a significant difference between a celebratory and a derogatory cake. However, Douglas Laycock and Thomas Berg have argued in their amicus brief that the state’s reasoning in the two cases is “flatly inconsistent.” They continue, “This differing treatment cannot be explained on the ground that the message of the other bakers’ cakes would be explicit and the message of petitioner’s cake implicit. That would not matter to the court’s stated logic, and either way, petitioner would be helping to celebrate a wedding he believes is sinful.”

Because the state addressed the two cakes using different logic, Laycock and Berg argued, the Colorado law “as applied, violates the Free Exercise Clause. It is neither religion-neutral nor generally applicable.”

They continue, “The question is whether the unregulated ‘nonreligious conduct … endangers these [state] interests in a similar or greater degree’ than the regulated religious conduct. Here the unregulated conduct—refusing to provide a cake denouncing same-sex marriage for a conservative Christian customer—endangers the state’s interests as much as the regulated conduct—refusing to create a cake celebrating same-sex marriage for a same-sex couple. Unwillingness to promote a protected group’s message either is discrimination or it is not. Sending a customer elsewhere because of disagreement with his requested message inflicts the same inconvenience, and the same insult, whether the message about same-sex marriage is celebration or condemnation….”

There may, however, be a sincerity argument in this approach that is being overlooked. If the purpose of requesting a derogatory cake is not, in fact, religious, but was intended to stir up the “culture wars” there might be a good reason for the disparate results.

Free Speech Argument

The Supreme Court could avoid the debate over whether there is a “free exercise” difference between derogatory cakes and celebratory cakes, and avoid addressing Smith and Boerne by ruling on a free speech basis.

Applying a free speech exception to an anti-discriminatory law may be more broadly applied to any secular discrimination against a protected class.

The Court could also take a “hybrid rights” approach by applying free speech analysis to only religious speech, but that could be problematic as well.

The Court would also have to decide whether the creation of the cake was “expressive conduct” or simply an activity, and may have to go deeper into an analysis of what the creation and placement of a wedding cake entails. As it stands, Phillips contends that the state is compelling him to speak while the state of Colorado contends that they are asking him to provide the same service for a same-sex couple that he does for other people.


In 2014, the Supreme Court debated whether to hear the Elane Photography case, but in that case, the photographer’s attorneys had alternated between free speech and free exercise claims through the initial trial and appeals processes. Masterpiece Cakeshop provides a cleaner legal history with a more specific set of issues that has been consistently argued.

If the Court finds against Phillips, it will return the issue to the states where legislatures will decide what kinds of exemptions cake makers will have. The Smith decision gave the states the jurisdiction to decide on how to adapt their own interpretations of the free exercise clause, and although Scalia seems to have regretted the decision which was intended to initially apply to outliers but has had a much more mainstream effect, it creates a precedent that will be difficult to unseat. While the free speech argument could have a much broader application with its own set of unintended consequences, it would be an “easier” answer for the Court.

The decision to be issued next spring may only have a very narrow result affecting wedding cake bakers in Colorado, or it could have very broad implications for free exercise and free speech nationwide.

To read the many briefs filed on all sides, visit SCOTUSblog.com.

Michael Peabody, Esq. is a regular Spectrum contributor and editor of ReligiousLiberty.TV, a website that celebrates freedom of conscience, where this article first appeared. It is reprinted here with permission.

Image Credit: Pexels.com

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This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/8429

There are two ways to look at the action of the baker.

Was he discriminating against persons or an idea.

He is not allowed to discriminate against persons, but has a right to refuse to support an idea.

The gay guys could buy a birthday cake or retirement cake without a problem. Therefore THEY are not being discriminatied against. But to ask for the baker make a cake supporting the IDEA of gay marriage, something he objects to, should be off limits.

Thus the court should support his claim to refuse.


When does the baker stop discriminating? Let’s say he’s an Adventist…

The wedding of a white/black couple. Doesn’t approve of being unequally yoked? No cake.

The wedding of a couple who committed adultery? No cake!

The wedding of a couple who aren’t both Adventists? No cake!

What about a couple who are going to serve alcohol at their wedding reception? No cake!


You can detect my opiion towards gays . My full respect to their concet of how to live.

But do I say a businessmann - the baker - except the case of emergancy has to accept the customers order ? Whathever the bakers decision is based on, does he not have the possibiity and personal right to do or not to do what he decisdes ?

H eis not the plumber in case of a broken pipe, he is not the firefighter, he is not the surgeon in the emegency unit - he has the right to refuse to produce this or that - for whatever motivation.

See, my dear LTGB community - I am now a memeber of sdakinship - this action, brought before the court - is ridiculous. For other - economical reasons - we had our wedding at the historical Cafe “Demel” downtown, just the family, some snacks and a slice of cake. (NOO wedding cake !).

Some gaays really majke it very strenuous to somehow defend /suppotrt theit position an deal with theirverl problems.

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A good share of this hinges (as the Supreme Court has noted) on what is considered an artistic creation. Could a comedian, cellist, or orchestra refuse to play at a KKK convention? I would like the option not to do that, but not on religious grounds; on the other hand, not to allow a citizen to contract for my services because I don’t like them is problematic, too. I don’t think the baker refused to sell cookies or other non-“creative” cakes. I don’t like where this line of thinking is taking me, but it’s something to think about. The bakers are founding their case on the First Amendment, but I’m not sure that’s going to get them where they (or the rest of us) want to go. I’m not a lawyer, though, and I’m sure several are part of they conversation.

How interesting to wonder, “What would Jesus do?”.

As such, I am reminded of another wedding celebration long ago. Not regarding cake, but this time regarding wine. There in Cana the celebration itself was about to be derailed in disgrace due to lack of provision and lack of good planning.

But soon something very telling occurred. Jesus obeyed not just his mother but his Father as well it seems. He stood in with confidence to save face. He stood in boldly to lavish grace. And then the wine began to flow.

Granted, these newly weds did not share likeness in gender, but they, like their guests shared a sin-likeness bearing the common desperate human burden for grace. Jesus’ obedience and love for his Father drew him into a subsequent crescendo of “grace notes” (miracles, really) deigned to illuminate his mission of both revelation and hospitality. Both aspects playing strongly for connection. Our connection. After all, his mother said it best, “…(trust Him,and) do as He tells you”. And such profound results did abound!

Enter a baker and a same sex couple seeking to engage for hospitality and their hearts’ desire. That is, to marry.

The couple asks “Please?”.
The baker says “No”.

Did Jesus tell the his mother and the wedding host, “No, no more wine, party’s over?”.

What did he tell Mary Magdelene about brushing his feet with her hair and some over priced elixir, “Cut it out, really this so isn’t me?”.

What did he tell the woman to be stoned for her chosen profession of infidelity, “Really my dear, this is all about consequences?”.

What did he tell the rich young ruler, or Samson, or Moses or Job, Noah or Abraham or Sarah, “Like I said, I’ve got standards, off the island!”.

Not so much. Rather, He spoke of love, hospitality and grace. And he spoke the truth about who he was and how he loved to show them more about his Father. He wooed them with passion, and matchless charms. The same passion and pristine surrender that that drew them to him in repentance and redemption.

Is the issue that of wedding cake and symbols that may appear to sanction one certain lifestyle? Or is at stake the issue of an invitation to follow in the likeness of the Master who masterfully maintained his divine focus. Not maybe just a likeness of palestine’s one time greatest sommolier, but indeed that of the greatest mender of broken hearts and reweaver of tattered souls to have ever filled the universe.

Christ did not seem to concern himself with the ritual fittness of the missteps in those he chose to lift up and save. His hospitable grace was ever increased where yet sin did and still abounds. Sin is and will utterly always be all and only what sin truly is, a hostility to his hospitality of grace. And sinners rarely seem inclined to surrender their natural inclinations until they are drawn to and drawn by a more suitable substitute. And what a substitute He has been. What a miraculous substitute He always will be.

Christ showed the wedding guests in Cana a much better way. In that way and in all ways he has and always will honor his Father. He did it then and does it now so masterfully. It’s about surrender and grace. The ultimate of all hospitalities.

“Let me run quick to the kitchen and whip up that cake you’ve been wanting, sir(s). I’m just bursting to tell you about our own new winemaker and His pairing of cake with new wine!”.


i think the biggest strike against charlie and dave’s lawsuit is that there are doubtless other wedding cake makers in lakewood, and if by chance there aren’t, there are certainly other wedding cake makers in denver, less than 10 miles east…jack’s decision to refuse their business doesn’t necessarily leave them stranded…this moment of melodrama - and charlie’s rendition of the grievance he’s experienced from jack is very melodramatic, and smacks of attention-seeking - doesn’t amount to the type of discrimination inflicted on someone who must suffer loss due to a biological or religious reason because there are no alternatives…charlie and dave can simply hire a different baker and move on…

on the other hand, jack is probably being ridiculous…does the average person see cake baking as a form of speech…is jack running masterpiece cakeshop for free, or is he running a business in a country with laws that stipulate his business cannot infringe on anyone’s civil rights…jack will not become gay, nor will he be coerced to perform gay sexual acts, if he bakes a cake for gays and they pay him…is jack being prevented from decorating his cakeshop in obvious heterosexual themes…is he being forced to display a wedding cake with two men on it if he displays a wedding cake that features a man and a woman…will anyone who knows him believe he’s relinquished his religion merely because he’s engaged in business with people he doesn’t agree with…

i think this case is totally similar to the kim davis debacle in kentucky two yr ago, in which she refused to grant david ermold a marriage license because he was marrying another man…in other words, i think jack is going to end up in the lakewood jail…of course, mike huckabee, and probably donald trump, will rush to his side and try to get as much mileage as possible for the 2018 midterms (which the GOP will need), and GLAAD, ACT UP, and probably even GLIFAA, will organize street protests all over the country…but no-one’s minds will be changed, no-one’s hearts will be won…instead we’ll be forced to witness yet one more episode that polarizes society to the breaking point…

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I am increasingly having difficulty with “Christian Values” and the “Us verses Them”.

I want to make a sign; “Not serving Evangelicals”. (against my religion)

Trying to be better then that.

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I came across this article courtesy of Greg Hamilton, director of Northwest Religious Liberty Association at the North Pacific Union Conference of Seventh-day Adventists. Figure it is worth sharing here.

Drawing a Line in the ‘Gay Wedding Cake’ Case


WAIT! White/black is not “unequally yoked”. Good grief, where did you come up with that?

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When I was growing up in the SDA denomination some decades back I was raised for a few years in a congregation that was mixed more or less equally between African American and Caucasian. I didn’t know what racism was till we moved from that congregation to another some 300 miles distant.

I distinctly remember on more than one occasion hearing Adventist brethren stating that a mixed race marriage was a violation of that particular exhortation not to be unequally yoked. I also remember being shocked as a 6 year old that such prejudice existed in the world, much less within a church what was supposedly awaiting the second coming.

Of course my understanding at that age was much more simple than what I’ve just described in the previous sentence but in adult words that describes what I was feeling at the time. One thing for certain is that I’ll never forget the experience, at least until I become senile, and maybe not even then.

@webEd - Oops, been so long since I responded last that I forgot I had. Sorry! you may delete if you wish.

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I was taught that growing up in the SDA church, by racist leaders who stated that the thing the black man wants the most is a white woman, and we must prevent that unequal yoking based on race as it is a sin.

This is a dangerous position, IMO:

  • A barista could say a cup of coffee is an artistic creation.
  • The short order cook at Denny’s could claim his grand slam is art.
  • A restaurant could refuse to seat an openly gay couple because associating with gay people is against the manager’s convictions based on Leviticus.
  • What if the baker didn’t want to make the cake for any non-Christian wedding, citing their beliefs that any wedding not performed in the name of Jesus was invalid?
  • Can a good Christian refuse service to a Jew, since he knows the Jews are Jesus-killers? [of course they are not.]
  • What if your sincere religious belief is that the races should be kept separate to avoid contamination? That blackness is a curse from God? So, you won’t sell to black people in your retail store because it may harm you or your children?
  • Is it OK to fire an openly gay person because they are gay and you don’t approve of their lifestyle?

It seems to me that refusing to sell a product to a potential customer because they are gay, which is what this amounts to, is the same as putting up a sign in the window of your wedding cake shop that reads “No gays” or “Straits only”: There is no other use for a wedding cake except for a wedding, and gay people will tend to have gay weddings.

This would be a lot like “No blacks” or “Whites only”. Segregation was driven not in a small part by people’s religious beliefs, and before that slavery was justified using the bible; White masters claimed the system was put in place by God, and that was actually taught from the pulpits in the south. While far more severe than wedding cakes, if your religious convictions can justify such behavior before the law in either case, I think that’s a problem.

The article linked to above stated this far better than I can: https://www.nytimes.com/2017/11/27/opinion/gay-wedding-cake.html

I like the ending:
“Freedom of speech and freedom of religion do not exempt business owners from public accommodations laws, which require them to serve customers equally. The Court should uphold the commission’s decision and rule against Phillips.”

Yes, that article does a really good job. The difference between these business owners and Starbuck’s is that those large, national (or regional) chains have overriding policies, so a barista or Macy’s employee can’t do that. But “what art is” is at the hub of the challenge. On the “unequally yoked” business: That notion of black male sexual energy didn’t move too far north, but it has been here—late in the 19th C., a student at Harvard (I think) was exonerated from a sexual misconduct accusation because the assumption was that he couldn’t help it . . . (!). Also: That notion in the 19th century included class distinctions, not just religious and “racial,” which was bizarrely out of anyone’s mind, to begin with. The 1920s-30s and, earlier in Reconstruction when lynching was running rampant, that was one way to both keep white women at home and black men away from “mixed” social environments. Not until post WWII’s social emphasis on exogamous marriages did some of the more restricted notions of “unequal” develop. Class, culture, race, religion all provided barriers and parents and communities had a great deal of influence over marriage.

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