A Question of Faith

Written by Howie Slugh on . Posted in Opinion

In its recent ruling in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court reaffirmed that “religious hostility on the part of the State” is impermissible. Some have commented that this decision does not resolve the tension between First Amendment rights and anti-discrimination laws; yet its impact may be far-reaching if it deters courts from second-guessing religious practitioners’ understanding of their own faith.


This case involved a baker, Jack Phillips, whose Christian faith led him to refuse to create custom cakes for same-sex weddings. In 2012, a gay couple requested that he make a cake for their wedding. Phillips responded that he would not “create” a custom wedding cake for them. He offered to sell them “birthday cakes, shower cakes . . . cookies and brownies,” but explained that he could not, in good conscience, create a cake for a same-sex wedding. Phillips maintains that he would not object to selling a gay couple an existing cake for use in their wedding; he simply objects to creating a new cake expressing affirmation of same-sex marriage.

The couple filed a complaint against Phillips with the Colorado authorities. The Colorado Civil Rights Commission ruled that Phillips had illegally discriminated. The commission rejected Phillips’ argument that forcing him to create a cake for a same-sex wedding would violate his rights under the First Amendment’s Free Speech and Free Exercise clauses.

The Supreme Court did not directly address the merits of Phillips’ constitutional arguments. Instead, it found that the commission’s decision was infected with unconstitutional animus against religion. Justice Kennedy, writing for a seven justice majority, noted that the commission members made comments implying that “religious beliefs cannot legitimately be carried into the public sphere” and “that religious beliefs and persons are less than fully welcome in Colorado’s business community.”

Kennedy was particularly moved by one commissioner’s description of Phillips’ beliefs as “despicable,” and the comparison of “his sincerely held religious beliefs to defenses of slavery and the Holocaust.”

Justice Kennedy also found that the commission did not give Phillips an impartial hearing because it had, on three occasions, ruled in favor of bakers who refused to make cakes that conveyed disapproval of same-sex marriage. Kennedy concluded that this unequal treatment was the result of “the government’s own assessment of offensiveness.” The government was sending “a signal of official disapproval of Phillips’ religious beliefs,” and a signal of approval for the beliefs of the bakers who refused to bake cakes criticizing same-sex marriage.

The majority did not need to decide the other constitutional questions, according to Kennedy, because prior to any other consideration Phillips was entitled to an adjudication free from hostility to his faith.

There are cases similar to Masterpiece Cakeshop v. Colorado Civil Rights Commission currently working their way through the courts. This decision does not necessarily resolve them. One part of the ruling, however, may have a larger impact than some expect.

Justice Kennedy wrote, “it hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate.” This reminder may impact other pending religious liberty cases. Looking back at the Little Sisters of the Poor case, which challenged the Obamacare mandate requiring employers to provide insurance covering abortion-inducing drugs, the Tenth Circuit described the Little Sisters’ claims regarding their beliefs as “unconvincing.” If lower courts take the Supreme Court’s injunction against passing judgement on the faith of religious practitioners seriously, Masterpiece Cakeshop v. Colorado Civil Rights Commission may be more significant than commentators expect.

By Howie Slugh


 Howard Slugh is an attorney practicing in Washington, D.C. He contributed an amicus brief in Masterpiece Cakeshop v Colorado Civil Rights Commission as a General Counsel of The Jewish Coalition for Religious Liberty.