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An Unsatisfying Slice Of Jurisprudence

slice of wedding cake on a pedestal stand

Anyone who read my blog post last year about Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission might mistakenly expect me to be thrilled about the Supreme Court’s ruling this week.

While I am pleased that the decision went in Masterpiece’s favor, the truth is that the 7-2 outcome was not particularly satisfying. I would even go so far as to say that reading it left a bad taste in my mouth.

The case centered on Jack Phillips, Masterpiece Cakeshop’s owner, who refused to make a wedding cake for a gay couple, Charlie Craig and David Mullins. As I noted last year, I have been a strong supporter of same-sex marriage for decades and would personally choose to avoid a baker who refused to extend his services to same-sex couples. However, just because I disagree with Phillips’ viewpoint, that does not invalidate his right to express it – or allow the state to compel him to express the contrary position, in this instance.

Phillips contended that baking and decorating cakes is a protected form of free expression, but that is not the basis on which the Supreme Court ultimately decided in his favor. The seven-member majority, with liberal Justices Elena Kagan and Stephen Breyer joining the usual five-member conservative bloc, was just an artifact of the case’s particular history. Where it really counted, the high court’s defense of the First Amendment was much weaker – if it was even a defense at all, rather than a retreat. It will take some time to know which it really was.

Phillips was brought before the Colorado Civil Rights Commission in 2012, two years before Colorado – and three years before the United States as a whole – legally authorized same-sex marriage. (Craig and Mullins planned to wed in Massachusetts, where same-sex marriage was already permitted, but their reception was to be held in Denver.) The state commission was openly dismissive of Phillips’ protestations that his sincere religious beliefs prohibited him from confecting a celebration of a marriage between two men, though he would have happily sold any other sort of baked good to the couple. Further, at almost the same time the Colorado Civil Rights Commission was dismissing Phillips’ arguments, it found justification for the conduct of three other bakers who refused to produce cakes denigrating same-sex marriage, making its disdain for Phillips’ religious arguments even starker.

To assemble this unusual seven-member plurality, Justice Anthony Kennedy, who penned the majority opinion, all but ignored Phillips’ principal argument: that to him, a wedding cake is a form of expression, and thus due First Amendment protection as a form of speech. Instead, the court focused on the Colorado commission’s inappropriate dismissal of and hostility toward Phillips’ religious beliefs.

The narrowness of this ruling means that, at best, it will offer little guidance to lower courts attempting to rule on similar issues, a point that Kennedy openly acknowledged: “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

More pointedly, Kagan’s concurrence all but promised that a more carefully constructed action against a recalcitrant baker might well stand up to judicial scrutiny. The trick, she said, is to ensure that such decisions are not openly “infected by religious hostility or bias.”

Only Justice Clarence Thomas, joined by Justice Neil Gorsuch, openly adopted Phillips’ position on freedom of expression. Thomas posited that “Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are ‘weddings’ and suggest that they should be celebrated—the precise message he believes his faith forbids.” Thomas also points out that states cannot regulate speech with the exclusive aim of removing biases from public life, since that could open the door to allowing the government to stamp out – or require – almost any sort of speech at will.

This ruling as written leaves the disturbing possibility that an apparent First Amendment victory may someday serve as a roadmap for the government to proscribe certain religious positions and to prescribe certain forms of expression. And that is nothing to celebrate.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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