Who Really Won the Wedding Cake Case?

On Monday, the U.S. Supreme Court surprised a lot of us and issued a ruling in the Masterpiece Cakeshop case that not only avoided making a real decision, but avoided it with great style.

Jack Phillips, a small business owner, faced fines from the state of Colorado when he refused to make a wedding cake for a same-sex couple even though he said he would be happy to make them other kinds of cakes. He didn't get to the discussion about the design of the cake topper or how the cake would look. He just said “No” when he was asked to do so because to participate in the wedding in this manner would violate his sincerely held religious beliefs. After all, next to the first kiss, the smearing of the wedding cake on the new spouse's face is a highly anticipated part of the wedding day. Phillips was fined, and lost his case at every level, beginning at the level of the tribunal, the Colorado Civil Rights Commission.

To help make his point, a guy named William Jack decided to troll the Commission by going to three bakeries and requesting they make him cakes emblazoned with anti-gay messages. When the bakeries refused, Jack sued. The Commission ruled against Jack.

By a significant margin of 7-2, the Supreme Court decided to issue the narrowest ruling possible, making a decision that only affected Jack Phillips in this case and this case only. The High Court found that the Commission had erred in being negative about Jack Phillips' religious beliefs when a commissioner had compared the arguments that he was making with justifications for racism. And the majority also said that it wasn’t fair that Jack's anti-gay cake cases were dismissed but the case against Phillips remained.

So Phillips won this specific case and the lower decisions were vacated. However, it only applied to that fact pattern, and will not even apply to Phillips again unless a commissioner decides to comment negatively about his religion. It said nothing about his free exercise or free speech rights other than that his religious beliefs should not be denigrated.

The Court sidestepped a determination of the free exercise clause and free speech issues which were the central point of the case and instead said state commissioners weren't neutral, but the example they used was weak.

This case hinges on an interpretation of a statement by the commission, and the actual statement and how it was described in the ruling seem to be dramatically different.

Here's the statement made by the commission:

“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Tr. 11–12.

Here's how that statement is described in the Masterpiece Cakeshop summary. For legal nerds, I'm referencing the summary because it's concise:

"As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case."

Did the commissioner really describe Phillips' faith as "despicable" or was the word "despicable" used to describe the rhetoric? Did the commissioner really call Phillips' faith merely rhetorical? Was it even about his religion, or was it really about his line of argument? Did the commissioner say anything that was not accurate?

The Court also claims that nobody objected to the commissioner's statement when it was made, and this is proof of bias, but would anybody have objected to that statement when it was made?

I agree that Phillips' free exercise rights needed to be considered seriously by the Commission and given proper weight, but the lack of a cohesive argument for bias is probably a good reason why the argument was left out of the briefs and lower court rulings. It just doesn't add up.

Next time a same-sex couple asks Phillips for a wedding cake, the commissioners will simply not talk about what they think of his religion. The Commission will point out that under Employment Division v. Smith, the anti-discrimination law is neutral and applies to everybody and that he violated it when he refused to make the cake. It will not matter what the commissioner think – only what they say. In effect, the Supreme Court put a gag order on the commissioners to make sure that they keep their opinions about somebody’s religion to themselves.

As we point out in our article about Arlene’s Flowers, which the Court may yet agree to hear, Masterpiece Bakery doesn't resolve the Washington florists' dilemma. Nor does it resolve similar wedding services cases that are cropping up across the United States.

In fact, on Tuesday, June 5, the day after the Court’s decision was released, an Arizona court ruled that owners of an art studio that designed wedding products must create customer-specific merchandise for same-sex weddings. The Arizona court wrote cited a statement from Masterpiece Cakeshop, stating that “allowing a vendor who provides goods and services for marriages and weddings to refuse similar services for gay persons would result 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.” Masterpiece Cakeshop, Ltd., slip op. at 10.

The Arizona court also told the business owners, who had filed for an injunction against enforcement of the Phoenix anti-discrimination statute, that although they were prohibited from posting statements about their intent to refuse services for same-sex weddings, “ they may post a statement endorsing their belief that marriage is between a man and a woman and may post a disclaimer explaining that, notwithstanding that belief, Section 18-4(B) requires them to provide goods and services to everyone regardless of sexual orientation. Or they may post a disclaimer that the act of selling their goods and services to same-sex couples does not constitute an endorsement of their customers’ exercise of their constitutional right to marry or any other activities.” Brush and Nib Studio, LC v. City of Phoenix (AZ App, June 7, 2018)

In many ways, given the fact that the issues remain unresolved, the Supreme Court by default has deferred to state laws on the issue so long as the beliefs of all parties are taken seriously by the tribunals assigned to hear the cases. Maybe Jack Phillips won a battle but lost the war.

And perhaps we don’t want the Supreme Court to draw lines around all forms of human behavior. In a column earlier this week, George Will lamented the loss of the "live and let live" approach. Before Obergefell, the rallying cry of those advocating for same-sex marriage was "live and let live." And perhaps now those advocating for the business owners should argue for the right to “live and let live.”

But if Phillips did win the case, and that is up for debate, maybe the Court is trying to get society to figure out how to work things out amongst themselves. If a business owner has a sincere objection on religious grounds to refuse to provide a wedding-related service, maybe the answer is not for the Court to determine exactly where free speech and free exercise of religion begin and end, but instead for the involved parties to be willing to refer to other service providers and for each side to accommodate the other to the extent possible.

Editor's Note (June 11, 2018 at 2:00 p.m. EST): A previous version of this article incorrectly stated the name William Jack as William Jacks. It has been corrected.

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/8810
1 Like

Here is what I have heard from various sources on the Radio.
++Phillips DID NOT refuse to sell the 2 guys cakes. He said he would, they would just have
to DECORATE IT THEMSELVES and take it to the reception THEMSELVES.
I understand he WOULD sell them plain frosted cakes.
++ Another group went around to 3 OTHER bakeries, and the owners response was --“WE
LIKE GAYS,” so THEY REFUSED to do an Anti-Gay statement.
AND, as stated, the Local Commission REFUSED to accept THEIR Complaints.
++ I understand that BESIDES Phillips, a Jewish group and a Muslim group joined Phillips
in his request for Help from the Supreme Court.
++ I understand that, by what was reported by commentators, that this will ALSO HELP
OTHER bakers who are Jewish or Muslim who refuse on RELIGIOUS GROUNDS if a
Gay/Lesbian couple want THEM to decorate a Wedding cake.
++ IF I am INCORRECT that Phillips WOULD HAVE SOLD a plain frosted cake for THEM
TO DECORATE, please correct me, with accurate information.


So sorry, I can’t sell you those condoms, I’m Catholic.

You will have to go to register number eight, but she is Muslim and can’t sell you that ham.

And register six is Mormon, he can’t sell you that caffeinated Cocoa Cola.

And ,oh, you can’t take that birthday card to register two, she is a Jehovah’s Witness.

But register five is a gay guy, who believes in EQUALITY and does not hide his bigotry behind a cloak of religion.


WHEN I am working as an employee of a business, I am agreeing to sell ALL their products.
OTHERWISE, I need to APPLY at a business that agrees with my values.

WHEN I OWN THE BUSINESS, I should have the RIGHT to sell WHAT I WANT.
I SHOULD NOT be forced by Government to SELL something I DO NOT want to sell.

Robin – This is the difference I see between my post and your post.


Oh well…it appears you just can’t legislate for idiocy!!

Will Jesus resurrect practicing LGBT in the 1st resurrection?

Some of what you say is inaccurate, some of it requires some nuance. First, as I understand it, the conversation between the baker and the couple at the time never got to what the baker would and would not do. Once the couple said they wanted a wedding cake he refused. The baker never even found out whether they wanted a wedding cake that would explicitly denote a same-sex wedding (which is important in my estimation). Now it is possible that in the aftermath the baker said what he would be willing to do, but that admission only occurred after the discrimination took place. The couple was not aware of that at the time they attempted to order the cake.

The nuance of your second point needs to be highlighted. The other group went to other bakers asking them for products that included anti-gay statements , like a cake with writing that was anti-gay. Almost everyone agrees that a business can refuse to assist in that specific of a message. The question raised in this case (which the court refused to answer) is whether the simple baking of a cake, or the decoration of it in a wedding style (without more explicit message casting) is speech such that a baker can say, “I will not assist you in that communication.”

Finally, it can’t be stated more strongly that this case helps no one but Phillips and it only helps him in an abstract manner. (i say this because Phillips solved the problem himself by not selling wedding cakes to anyone, and it is unlikely that he will start again unless he wants to get sued again and do this all over.) The court did not address whether he was right or wrong to discriminate. Only that the commission that first heard the case was not neutral with respect to his beliefs (and I agree with Michael here that their argument is very weak). So if someone else wanted to rely on this case, they couldn’t say the Masterpiece decision allows them to discriminate. It just doesn’t.



Even God Himself cannot raise from the dead those who are alive! How can that be? Or is this an example of psychological transparency?

How is this even possible Dr. Tichy ? @GeorgeTichy


So sorry, Steve Mag

Unless that baker is in an unincorporafed, rural, non-urban location,
he had to apply for a business license to open his business in that town/city/jurisdiction.

In most cities/towns/jurisdictions, that license includes store opening hours,
and display signs and advertising permitted on the store front.

In most cases the license assumes he/she, the business owner, will appropriately serve the local community. That community usually includes ALL races, and hopefully the local LGBT residents.

If he is not willing to serve ALL the community, his business license should be revoked.


Will Jesus resurrect someone with Swyer syndrome, and what gender would Jesus ascribe to that individual?

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He WAS willing to sell as many plainly decorated cakes as they needed.
Just NOT decorated in a WEDDING MOTIF.

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Jesus plainly said there would NOT be Marriages in heaven.
Jesus DID NOT say that persons who liked each other COULD NOT LIVE together in heaven
[or more appropriately, here on the New Earth]. Perhaps THIS is the way the Angels are
allowed to live.

It’s not the first time that @gideonjrn challenges our brains with questions like that. Very puzzling…
However, I am not an expert on the issue. I think he needs to ask a mortician. Those guys may have a clue since they ARE experts on the issue. :upside_down_face: :innocent:


(20 20 20 20 20)


True freedom would most certainly allow a business to deny its services to a cause which is contrary to the conscience of the owner. Our freedom to practice our religious convictions should not be impinged upon by public accommodations law!

It’s sure an option.
OTOH, the gay community could buy/run certain businesses that are important and deny services to straights. How would you like that?


I am trying to understand how this would impact a Sabbathkeeper if he or she were asked to bake a wedding cake on Sabbath or if businesses at some point are required to stay open on Sabbath using the same rational that they need to serve the public on their basis. Can’t we relate to the baker’s dilemma. It was his belief and not discrimination against the persons. He would do other orders but would not participate in the wedding.
. His religion was denigrated and I understand he lost his business and ended up suffering persecution for his belief.
At the same time we can’t expect others to believe as we do and the baker was not forcing his belief on his customer. That is why we cannot ban same-sex marriages (as some SDAs wanted to do). That is also against freedom of belief as much as a Sunday law would be.

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Am I missing something, or are all the comments only about the legality or illegality of a business owner to make decisions based on his beliefs? Why isn’t anyone questioning “what kind of God would require, even demand, that an adherent of that belief system must deny services to someone because they violate the religious beliefs of that proprietor”? Carrying this concept to its completion would make commerce of any kind impossible, as we are all sinners, and someone may want to deny us services for one reason or another.

Perhaps we should all be questioning what we feel God is asking of us as it relates to those around us that are clearly not in accord with our own beliefs. We have a perfect example of where this leads, just look at the Jews at the time of Christ. They would not allow a non-Jew into their homes, they would not eat with them, and they would not even administer emergency aid to a non-Jew who was injured on the roadside.

Serious introspection into your beliefs and what you think your God is asking of you, seems in order. Our church has always tried to pride itself in keeping church and state separate. State also should include commerce. If the service you’re asked to perform causes you to violate a belief, your issue with refusal seems justified. But just because you don’t like someone else’s choices as to how they wish to utilize your services, but it doesn’t cause you to violate your belief, then, what else could it be other than your trying to control their choice by your refusal? At what point do we stop our civil functioning and start imposing our beliefs? Do you avoid staying in a hotel because there have been adulteress affairs carried out there? Do you stop eating in restaurants because they serve pork? Which hospital do you avoid right after your heart attack, because they have performed an abortion in the facility? Then there is the ultimate question, how pathetic have you made the God you worship look to the eyes of the thinking world when you have “stood for your principals”? “Thinking world” was chosen, because so many actions of the religious community today don’t even attempt to reason what principal they are trying to stand for but rather, follow like so many lemmings in causes that only embarrass real people of faith. If it’s a sin to bake a gay wedding cake, then your issue is not with the gay couple but should be with God who created them that way.


Considering the Current Beliefs of the Average North American Seventh day Adventists,
as promoted by their Pastors.
Do you think that the average Seventh day Adventist would have catered the wedding
of TWO MEN with a finely decorated wedding cake??

I wish you would have asked if Jesus was at the wedding and the gentleman getting married came to Him and pleaded with him to perform a miracle and provide them with a cake, I believe He would have. No Theologian with any credibility believes that the wine he provided for the wedding at Canna was anything other than real wine. After all, there were no refrigerators in those days.

I can’t see how making a cake for anyone is in violation of the “sacred 28” rules. But having said that, I am sadly afraid that many Adventists would refuse to bake it.