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On Monday, June 4, 2018, the Supreme Court of the United States issued its highly-anticipated opinion in the Masterpiece Cakeshop, et al. v. Colorado Civil Rights Commission, et al., 2018 U.S. Lexis 3386 (June 4, 2018). The Opinion left more questions unanswered than it resolved.

Masterpiece is the most significant case regarding Lesbian, Gay, Bisexual and Transgender (LGBT) rights since the Supreme Court’s ruling in 2015 legalizing same-sex marriage. LGBT proponents have long-lamented the fact that, although same-sex couples can now legally marry nationwide, they continue to lack the same fundamental protections as other minorities.

This is because Title VII of the Civil Rights Act of 1964 – the law that prohibits race, gender, national origin, and religious discrimination – does not expressly include sexual orientation and gender identity as protected classes. As such, the federal courts are split on whether sexual orientation and gender identity are covered under federal law, leaving open many questions including:

  • Can an employer fire someone for being gay or transgendered?
  • Can a business exclude LGBT patrons from its establishment?
  • Can a service-provider refuse to provide services to LGBT customers?

Many believed the Court’s Opinion in Masterpiece would resolve these questions. It did not.

The same-sex couple in Masterpiece, Charlie Craig and David Mullins, asked a baker, Jack Phillips, to make a cake for their wedding. Phillips declined, stating that he would not make a wedding cake for a same-sex couple based upon his (Phillips’) religious beliefs.

Craig and Mullins filed a charge of discrimination with the Colorado Civil Rights Commission (CCRC). The CCRC found in favor of Craig and Mullins, holding that Phillips’ actions violated Colorado state law which expressly prohibits discrimination on the basis of sexual orientation. The Colorado Supreme Court later upheld the CCRC’s decision in favor of Craig and Mullins, and Phillips, in turn, appealed to the Supreme Court of the United States.

Significantly, the United States Department of Justice (DOJ) filed a brief on behalf of Phillips, arguing that forcing Phillips to make a wedding cake for a same-sex couple violated Phillips’ First Amendment right to artistic expression and religion. The DOJ was careful, however, in its defense of Phillips, to point out that a ruling in Phillip’s favor should be limited to individuals engaged in artistic expression, and would not more broadly apply to ordinary commercial enterprises, such as halls or hotels.

While both sides of the Masterpiece case agreed that the Supreme Court’s decision was important, they disagreed on why. Phillips’ supporters argued that a decision against him would mean that Courts could compel artists to include language or expression that they find morally offensive in their art if asked to do so by a client/customer. Craig and Mullins’ supporters argued that the case was not merely about artistic expression, but rather about legalizing discrimination against the LGBT community on the basis of religion.

In a surprise to both sides, the Supreme Court did not address these larger issues. Instead, the Court based its ruling in favor of Phillips upon a finding that the CCRC had violated Phillips’ First Amendment rights based on the manner in which it considered Craig and Mullins’ initial charge of discrimination. Specifically, the Court found that the CCRC’s handling of the charge “showed elements of a clear and impermissible hostility toward [Phillips’] sincere religious beliefs motivating his objection.” On this basis, the Supreme Court reversed the lower courts’ ruling.

Although the Court’s Opinion in this case essentially dodged what many view as the gravamen of the case, the complicated landscape of concurring and dissenting opinions in Masterpiece may signal a willingness – on both sides – to tackle this topic in the future.

In particular, Justice Thomas, joined by Justice Gorsuch, wrote an opinion concurring with the judgment, but arguing that the Court did not go far enough in addressing the issues at hand. Justice Thomas wrote that the Court should have established that Phillips had a First Amendment right to refuse to make a wedding cake for a same-sex couple, reasoning that making the cake was expressive speech (protected by the First Amendment), and that Colorado law could not compel Phillips to engage in expressive speech that violated Phillips’ religious beliefs.

Justice Ginsburg, joined by Justice Sotomayor, dissented from the majority Opinion on two bases. First, Justice Ginsburg reasoned that there was inadequate evidence in the record that the CCRC discriminated against Phillips based upon his religious beliefs. Second, Justice Ginsburg argued that an individual cannot refuse to provide services – required by a generally applicable and neutral public accommodations law (such as the Colorado law at issue in this case) – on the basis of religious or philosophical objections thereto.

These disparate concurring and dissenting Opinions preview a likely split within the Court should it directly undertake the issue of LGBT rights, and their intersection with religious freedom, in the future.