Bench Memos

Law & the Courts

Masterpiece Cakeshop Victory

In this much-watched case, Masterpiece Cakeshop and its owner Jack Phillips challenged the decision of the Colorado Civil Rights Commission that held that he violated state anti-discrimination law in refusing to bake a cake for a same-sex wedding. Today, the Court ruled, by a vote of 7 to 2, that the state commission violated the Free Exercise Clause by failing to provide a “neutral and respectful consideration” of Phillips’s claims. Justice Kennedy wrote the majority opinion, which was joined in full by the Chief Justice and Justices Breyer, Alito, Kagan, and Gorsuch.

As evidence of the state commission’s “clear and impermissible hostility toward the sincere religious beliefs that motivated [Phillips’s] objection,” Justice Kennedy pointed out that “commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” He complains that one commissioner “even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.”

As another “indication of hostility,” Kennedy also points out that Phillips’s conscience-based objection was treated less favorably than the objections of other bakers to creating cakes “with images that conveyed disapproval of same-sex marriage.”

In separate concurring opinions, Kagan (joined by Breyer) and Gorsuch (joined by Alito) sparred over whether the commission could have justified its disparate treatment of those other bakers.

In an opinion concurring in the judgment (joned by Gorsuch), Justice Thomas would have ruled for Masterpiece Cakeshop on both Free Speech and Free Exercise grounds.

Justice Ginsburg, joined by Justice Sotomayor, dissented.

This is an important victory, even as it kicks some bigger issues down the road. I hope to find time later today for some additional comments.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

Most Popular

Politics & Policy

The Beatification of Beto

The media’s treatment of Texas Democratic candidate Beto O’Rourke wasn’t the most egregiously unfair coverage of the past year -- that would be the treatment of Brett Kavanaugh -- but it ranks among 2018’s most annoying. The endless glowing profiles of O’Rourke in every publication from Vanity Fair to ... Read More
Elections

The Odds Are Slim to Nunes

When the history of the 2018 midterms is written, there will be a chapter on missed opportunities for Democrats. Some may wonder if they should have spent so much money supporting Beto O’Rourke in Texas, or whether Heidi Heitkamp was doomed from the start in North Dakota. One painful question for progressives ... Read More