The Supreme Court’s Same-Sex Wedding Cake Ruling Does Not Dismantle LGBTQ Protections

On Monday, the Supreme Court handed down a 7-2 decision in favor of the baker in the emotionally charged Masterpiece Cakeshop case. While this may seem like a major blow to LGBTQ patrons, the holding is quite narrow, and does not decide the most significant issues in the case. Nowhere in the opinion does the Court address the underlying constitutional questions of whether baking a cake is an act of expression protected by the First Amendment, nor does it hold that the religious freedom claims of a baker outweigh a state’s public accommodations laws.

What this means going forward is that the battle between religious freedom advocates and LGBT groups over the civil rights protected by public accommodations laws will have to be fought another day. And even though the Court did not rule on substantive issues, “that’s not how millions of Americans are going to interpret [it],” according to New York City-based lawyer Toby Shorter. He thinks the public will “miss the nuance of the decision,” and come to believe the Court allowed discrimination based on sexual orientation.

“This is both a fact-intensive and a narrow opinion,” says Professor William Araiza, professor of Constitutional law at Brooklyn Law School. In his majority opinion, Justice Anthony Kennedy “makes it clear that different products, different contexts, and different actions by state civil rights commissions will be relevant to how these cases should come out in the future,” Araiza says. “I think that makes it clear that this case doesn’t settle anything, but merely invites more litigation over those differences.”

The seven justices in the majority opinion (Gorsuch, Kagan, Kennedy, Alito, Roberts, Thomas, and Breyer) skirted the major constitutional questions presented — an outcome Eater predicted. Instead, the Court ruled that during the Colorado Civil Rights Commission hearings between the baker, Jack Phillips, and the same-sex couple, David Mullins and Charlie Craig, the Commission was “unconstitutionally hostile” towards the baker’s freedom of religion claim. The Court targeted one particular member of the commission who said in his original defense of the couple that “freedom of religion has been used to justify discrimination... And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.” SCOTUS found this to be particularly offensive to the defense of religious freedom.

What civil rights groups, many in the hospitality industry, and progressive activists hoped was that the Court would side with the couple and civil rights laws, and denounce the use of religion or free speech as a way to discriminate against members of the LGBTQ community.

The League of Women Voters president Chris Carson wrote that yesterday’s decision “will likely open the door to future same-sex litigation. All people, regardless of sexual orientation, should receive equal treatment from public businesses. We have laws in place to guarantee equal marketplace access to women, people of color, LGBT persons, and other protected groups. The ruling fails to provide clarity around when free exercise of religion rises to the level of discrimination against a protected class.”

This case won’t be the last word on this subject: A pending Supreme Court petition from a Washington florist who refused an order of custom floral arrangements for a same-sex wedding presents nearly the identical legal question as Phillips’ case. The Supreme Court has not yet decided if it will hear that case. (Only four justices need to vote in favor of a cert. petition for the case to be heard.)

The Court also did not officially tackle whether or not making a wedding cake should be considered “free expression” under the First Amendment. “The relationship between freedom of expression by vendors and opposition to same-sex marriages will have to be decided in other cases in the future,” explained Stephen Wermiel, fellow in Law & Government at American University Washington College of Law, where he teaches constitutional law and a seminar on the Supreme Court.

In his concurring opinion, Justice Clarence Thomas, joined by Justice Neil Gorsuch, outlined the reasons why he believes baking a wedding cake is a symbol of expression. Thomas believes baking a wedding cake for a same-sex marriage expresses support of such a marriage, and is thus protected “expressive” conduct under the First Amendment.

Thomas quotes from author Michael Krondl’s 2016 book, Sweet Invention: A History of Dessert: “[W]edding cakes are so packed with symbolism that it is hard to know where to begin.” He then notes: “If an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding… Almost no wedding, no matter how spartan, is missing the cake.” The cake, in other words, has become such a shorthand for the idea of “celebration” that it is an expressive object in a way a steak or shrimp cocktail isn’t.

Referencing previous cases which ruled that actions such as nude dancing and flying a plain red flag were considered expressive, Thomas writes that Colorado’s public-accommodations law “alter[s] the expressive content” of the baker’s message. “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… Once a court concludes that conduct is expressive, the Constitution limits the government’s authority to restrict or compel it.”

Contrary to Thomas’ conclusion that Phillips’ cakes are entitled to first amendment protection, the Chefs for Equality Amicus Brief, filed earlier this year by 222 leading chefs, bakers, and restaurateurs from every state, plus Washington, D.C. — including Tom Colicchio, José Andrés, Anthony Bourdain, Carla Hall, Sam Kass, Christina Tosi, and Marcus Samuelsson — argued that food preparation, even at its highest level, is not a core First Amendment activity. “Even when prepared by celebrated chefs, food retains a clear purpose apart from its expressive component: It is made to be eaten,” it states. “For that reason, food products and their preparation are not necessarily protected by the First Amendment.”

Unlike Thomas’ opinion, the strongly worded dissent, by Justice Ginsburg, joined by Justice Sotomayor, does not address substantive First Amendment issues, but rather focuses on why the Colorado Civil Rights Commission’s rulings should have been upheld.

Ginsburg felt the Court should not have reversed the judgment of the Colorado Court of Appeals because there was no no differential treatment of the Christian customers and gay customers. She points out that the bakers who refused to make cakes disparaging gay marriage would not have sold anti-gay cakes to anyone, whereas Phillips only refused to sell gay couples his custom wedding cakes. “What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple,” she wrote.

She also felt that the Commission’s findings were reviewed enough times to be held neutral and fair, with not only a probable cause hearing, but an Administrative Law Judge, and a Court of Appeals reviewing the case de novo, meaning that the court decided the issue without deference to a previous court’s decision. “She looks at this case and sees layer upon layer of independent review of this decision,” says Craig Konnoth, associate professor of law at the University of Colorado. “To invalidate it, is a little extreme.”

Konnoth also observes that Kagan concurs with Kennedy for the majority, rather than joining Ginsburg in the dissent, possibly to curry favor with the swing justice for a future case in which the same issue will come up. “It’s very much a decision where you can see liberals and conservatives fighting for Kennedy’s favor,” he says. The only wrinkle in this plan is that Kennedy may retire and open the door for Trump to send up a conservative nominee. And then all bets are off.

Free speech advocates such as the ACLU actually see the case as a victory. “The Court reversed the Masterpiece Cakeshop decision based on concerns unique to the case, but reaffirmed its longstanding rule that states can prevent the harms of discrimination in the marketplace, including against LGBT people,” says Louise Melling, deputy legal director of the ACLU. “The Court today reaffirmed the core principle that businesses open to the public must be open to all.” That said, the American Civil Liberties Union has promised to not “stop fighting until we ALL have equal treatment under the law.”

Andrea Strong, founder of the pioneering food blog the Strong Buzz, has been writing about restaurants and food for the past 18 years.
Editor: Daniela Galarza