Supreme Court’s Wedding Cake Case (June 4, 2018)

The Supreme Court issued its long-awaited decision in the Colorado wedding cake case, Masterpiece Cakeshop v. Colorado Civil Rights Commission (June 4, 2018) . This case involved a Colorado cake shop owner who refused to sell any wedding cake to a gay couple for their upcoming wedding, on the grounds that the owner's religious beliefs against gay marriage trumped the customer's right to purchase a wedding cake. Although the majority opinion found that the Commission's decision was improperly influenced by bias against the cake shop owner's religion, the Court did not decide which side was right on the customers' discrimination claim. Instead, the Court sent the case back to Colorado for a "do-over," leaving open the outcome.

The majority opinion (by Justice Kennedy) held that the Commission's decision should have been conducted with "neutrality" towards the religion of the cake shop owner. However, one or two of the Commissioners made derogatory remarks about the owner's religion, which the majority believed had improperly influenced or biased the outcome. The majority did recognize that while the cake shop owner's "religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners ... to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."

Justice Ginsburg, dissenting (joined by Justice Sotomayor), concluded that there was no evidence that "the comments by one or two members of one of the four decision-making entities" influenced the outcome. Justice Ginsburg noted that, in contrast to other bakers who refused to design and sell cakes that had derogatory messages, this cake shop owner refused to sell any wedding cake to the customers, regardless of whether there was any message on the cake. Justice Ginsburg stated that the owner's defense that making such a cake would be offensive was illegal, since "the offensiveness of the product was determined solely by the identity of the customer requesting it."

It remains to be seen whether the Colorado Civil Rights Commission will continue to litigate the case, but it is possible for the Commission to re-do the agency hearing in a way that does not include any actual or perceived religious bias in the decision-making process, thereby reaching the same result, i.e., that the cake shop owner violated the state anti-discrimination statute by refusing to sell any wedding cake to the gay couple.

- Alan Kabat