by Ryan Rasins 

There is no doubt that Masterpiece Cakeshop v. Colorado Civil Rights Commission was a resounding victory for the baker, Jack Phillips. Mr. Phillips will not be forced by the state to produce a cake for a same-sex wedding. Yet this case does little to stop the government from, as Justice Alito said, “stamp[ing] out every vestige of dissent” and “vilify[ing] Americans who are unwilling to assent to the new orthodoxy.”[1] In deciding this case, the United States Supreme Court vacated its role as prescribed in Article III of the Constitution to weigh in on the serious constitutional questions that undergird this debate. For the sake of preserving his own judicial legacy, Justice Kennedy chose not to engage with the free speech claims of Mr. Phillips or the right of religious believers to practice their faith free from governmental intervention.

Let’s start at the beginning: what happened? According to the Court, in 2012, a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop’s owner told the couple that he would not create a cake for their wedding because of his religious opposition to same-sex marriages—marriages the State of Colorado itself did not recognize at that time. They were to marry in Massachusetts and have their reception for friends and family in Colorado. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act. The Commission determined that the shop’s actions violated the Act and ruled in the couple’s favor. The Colorado state courts affirmed the ruling and its enforcement order, and the Supreme Court now must decide whether the Commission’s order violated the Constitution.[2]

What must the Supreme Court decide on? Mr. Phillips, the baker, argues that the Commission’s order compelling him to make a custom wedding cake to celebrate a same-sex marriage violates both the Freedom of Speech and the Free Exercise Clause of the First Amendment. Mr. Phillips chose to argue that he is an artist. As an artist, his cakes are an expression of what he believes; a court would never compel Andy Warhol to create a piece of art with a message he did not support. By requiring him to create a wedding cake (and thereby implicitly recognizing that same-sex individuals can be married), they are compelling him to make a statement with which he does not agree. The second issue pertains to the Free Exercise Clause of the First Amendment: Phillips argued that the government failed to respect his right to practice his religion as he sees fit.

What did the Supreme Court decide? The Court ruled 7-2 to overturn the Colorado Court of Appeals ruling that Phillips must bake the cake. Justice Kennedy wrote the majority opinion. It is important to note that Justice Kennedy authored the majority opinion in the landmark 2015 case (Obergefell v. Hodges) that legalized same-sex marriage. Many conservatives viewed the Masterpiece case as an opportunity to reign in the negative effects of the Obergefell decision and quell the fears of religious believers. In the opinion, Justice Kennedy decided that the Colorado Civil Rights Commission demonstrated “clear and impermissible hostility” towards the religious belief of the baker. The Commission described religious belief as “one of the most despicable pieces of rhetoric,” and said it was used to justify the Holocaust and slavery.[3] The majority opinion considered this to be viewpoint-based discrimination that falls well short of the impartiality the state must demonstrate in prosecution.

This is certainly a victory for Mr. Phillips and his bakery. However, Justice Kennedy’s argument has certain negative long-term impacts that deserve our attention. Justice Kennedy refused to rule for or against the baker’s free speech claims–they are virtually unaddressed by the majority opinion, as well as Justice Kagan’s and Justice Gorsuch’s concurrences. Instead, Justice Kennedy builds much of the Court’s opinion on the circumstantial facts of the case. The most damaging part of his opinion is the weight he places on the fact that this occurred prior to the 2015 legalization of same-sex marriage. In 2006, nearly 60% of Coloradans voted to add an amendment to their constitution reaffirming a traditional definition of marriage. It was in this context that the baker refused to make the cake, three years before the Supreme Court’s decision in Obergefell forced the states to legally recognize same-sex marriage. Thus, the baker’s desire to reject same-sex marriage was “understandable given the background of legal principles and administration of the law in Colorado at that time.”[4] Of course, this no longer holds true today. The Supreme Court has made it clear that the state has a responsibility to protect the rights and dignity of gay individuals who face discrimination in the marketplace. Throughout his opinion, Justice Kennedy repeatedly articulates that religious liberty is important but not more important than the right for a person to feel accepted in the market.

Justice Kennedy concludes his opinion, saying: “the outcome of cases like this in other circumstances must await further elaboration in the courts.”[5] In so doing, he makes it clear that this case is not to be used as a precedent going forward. The Court’s decision in this case is only meant to serve as a reminder that the government must maintain at least the appearance of neutrality towards religious beliefs in judicial proceedings. Justice Kennedy has seriously narrowed the applicability of Masterpiece by placing such an emphasis on the facts of the case. By writing the majority opinion in a pragmatic and limited fashion, the Court abdicated its role as the highest court in the land charged with providing clarity in constitutional interpretation. Justice Kennedy chose to remain vague for the sake of preserving his legacy from Obergefell v. Hodges and Lawrence v. Texas (2003), which made anti-sodomy laws unconstitutional. He provided a pragmatic victory to Mr. Phillips, while leaving Christians throughout the country in doubt as to whether their right to practice their faith without infringement is still standing. Justice Kennedy’s opinion was written so narrowly that although Justices Gorsuch and Kagan agreed on the Court’s verdict, they wrote separate, concurring opinions to disagree with each other.

Only Justice Clarence Thomas dealt with the meat of the questions at hand: the free speech claim made by Mr. Phillips. In his usual brilliant style, he handled this difficult issue deftly and beautifully. Justice Thomas pointed out that “a wedding cake needs no particular design or written words to communicate the basic message that a wedding is occurring, a marriage has begun, and the couple should be celebrated.”[6] Anyone who walked into a room and saw a multi-tiered white cake would immediately know there was a wedding going on. Justice Thomas continued: “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.”[7] The First Amendment protects him from government compulsion to espouse views he does not hold. Towards the end of his opinion, Justice Thomas argues, “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”[8]

As Justice Thomas warned in 2015, it was inevitable that Obergefell would come “into conflict with religious liberty, as individuals [would be] confronted with demands to participate in and endorse civil marriages between same-sex couples.”[9] In order to settle these difficult questions, the Supreme Court would have to rule on a case that involved these concerns. In the final analysis, Masterpiece Cakeshop v. Colorado Civil Rights Commission will not be relevant in 30 years. Justice Kennedy agreed with the baker but did not want to allow the conservative justices to deliver the opinion of the Court in a way that impinged upon the rights of same-sex couples. To maintain his legacy, Justice Kennedy provided a limited, pragmatic opinion which protected the baker without answering the deeper questions in this debate. The Court will have to take another case dealing with these issues once Justice Kennedy leaves the bench. When they do, one can only hope that there will be justices as serious as Justice Clarence Thomas who will provide a clear interpretation of the constitution. Until then, the Court will struggle to provide clarity on the ramifications of the Obergefell decision for people of faith.

Ryan Rasins is a rising senior and president of the Honors Program at Ave Maria University. 


[1] Obergefell v. Hodges, 576 U.S. ___ (5-4 decision) (Alito, J., dissent) (2015).

[2] Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018).

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Masterpiece Cakeshop v. Colorado Civil Rights Commission (7-2 decision) (Thomas, J. concurrence) (2018).

[7] Ibid.

[8] Ibid.

[9] Obergefell v. Hodges, 576 U.S. ___ (5-4 decision) (Thomas, J., dissent) (2015).