The Supreme Court Did Not Rule That a Baker May Discriminate Against Gays

This recent decision, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which I’ve written about before when it first reached the United States Supreme Court (see Related Posts below) pits a Colorado gay couple seeking a wedding cake against a religious baker who refused to make it for them because he believes the bible only allows men and women to marry.  The couple pursued him through the Colorado legal system and ended up with a Colorado Court of Appeals decision in their favor, holding that the baker violated a state statute forbidding discrimination on the basis (among other things) of sexual orientation.  An appeal was taken to the United States Supreme Court, where the Justices would have to draw some sort of line between the First Amendment right to religion freedom and the right of the states to forbid discrimination on various grounds (race, religion, sex, etc.).

[Ginsberg, Kagan, Kennedy,Alito, Roberts, Sotomayer, Thomas, Gorsuch, Breyer]

In my prior post I admitted that this is a hard question because if the Court were to come down in favor of the gay couple it would be ordering the baker to choose between doing something truly against his religious conviction or close his shop.  There are legitimate arguments on both sides, but almost impossible to find one that draws a line fair to everyone.  Further complicating things is that the Court has four liberals (Ginsberg, Breyer, Kagan, and Sotomayer), four conservatives (Roberts, Alito, Thomas, and Gorsuch), and Anthony Kennedy, ever in the middle and therefore the most powerful judge on the planet.  Kennedy was also the author of the majority opinion in the Obergefell case establishing a constitutional right for gays to marry, just one of a number of opinions in favor of gay rights he has written throughout his long tenure on the Court.

In the end the Court ducked the issue entirely and held for the baker by saying that the lower Colorado proceedings were unconstitutionally tainted by an announced distaste for religion, thus violating the First Amendment.  That Amendment, Kennedy’s opinion states, forbids discrimination against religion (which of course is true), and the Colorado decisions were wrong in not giving the baker’s religious views serious consideration. 

A couple of things about this:

1.  The baker might still lose if the gay couple renews the Colorado process and this time the Colorado system gives due consideration to the baker’s religious arguments but then finds that they do not outweigh the gays’ right to a wedding cake.

2.  The current Supreme Court opinion does not in any way answer the central question: does a sincere religious belief that gays should not marry justify the baker’s refusal to bake a cake for their wedding?  That won’t be resolved until another case raising that issue reaches the Court.

3.  If Kennedy retires at the end of this month (the Court’s term runs from October through June), Trump will appoint his replacement and then there will be five conservatives to write the next majority opinion, and four liberals dissenting on the losing side.  But if Kennedy hangs on past the November elections and Democrats take over the Senate, then Trump could not get a conservative Justice approved and he would have to nominate a moderate (someone close to Kennedy). 

4.  The decision was 7-2, with two of the liberals (Breyer and Kagan) joining the four conservatives and Kennedy, and two of the liberals (Ginsberg and Sotomayer) dissenting.  This is because (I would guess) that otherwise Kennedy would have joined the four conservatives whole hog, and gays would henceforth be trumped by religious objections to their existence.  After this decision that question is still up in the air, for which I, for one, am grateful.

When the Court next takes up this same issue (and there are cases in the judicial pipeline) what is the likely result?  Well, alas, that depends on who is on the Court.  If it remains the same personnel then, as usual, it would be up to Kennedy.  He waffled in this case, being sympathetic to the argument that it is cruel to make a religious man bake and decorate a cake that conflicts with his deeply held personal beliefs, but then adding:

[A]ny 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 put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons.

Oh that’s right, Anthony!  Remember that and cling to it.  The Court has long held that a religious conviction does not permit, for example, a white supremacist who reads the bible as condemning blacks to act upon that belief when conducting a business.  Why should the rules be different if the bible condemns (as it does, see below) gays?  May a Muslim discriminate against a Jew when serving the latter a sandwich in a restaurant?  No.  Then why is this even an issue with gays?  Hmm.  Well, society has historically discriminated against gays and only very recently has this viewpoint shifted so that a majority does not.  Perhaps in 2018 gays are still not worthy of the same protection as other minorities. 

Or perhaps they are.  It all depends on the makeup of the Court when next it must choose between a sincere religious belief and the right of gays to be treated like everybody else.

Anyone interested in the full opinion handed down in this case can find it at

Related Posts:

“Must a Baker Create a Cake for a Gay Wedding?  What Will the Supreme Court Likely Say?” September 28, 2017;

“Does the Bible Condemn Homosexuality and Gay Marriage?” June 29, 2014;

“A Supreme Court Crisis: The Momentous Retirement of Justice Anthony Kennedy,” March 26, 2018,


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