Today the United States Supreme Court handed down an important decision that touches not only First Amendment issues of speech and religion, but it also delves, once again, into the bubbling culture war surrounding same-sex marriage. In a 7-2 decision, which is a large margin in such a politically charged case, the Court ruled that religious liberty must be both considered and protected when states seek to protect same-sex couples from discrimination. In short, the Court sided with “the baker” in the wedding cake case, but it did so only in a limited fashion.

Jack Phillips, a Colorado baker and evangelical Christian, refused to create a wedding cake for a same-sex couple because of his religious opposition to the practice. When he refused, in 2012, same-sex marriages were not yet legally recognized in Colorado. This was before Windsor (which struck down a federal law that defined marriage as between a man and a woman for the purposes of federal law) and Obergefell (which required states to recognize same-sex marriage), so Phillips could argue, reasonably, he was acting within definitions of the law at that time.

The couple filed a complaint with the Colorado Civil Rights Commission, alleging discrimination on the basis of sexual orientation, which is illegal according to the Colorado Anti-Discrimination Act. The Commission found Phillips in violation of the law, and that finding was affirmed by the Colorado Court of Appeals. The Colorado Supreme Court declined to hear the case and Phillips appealed to the U.S. Supreme Court on Free Speech and Free Exercise grounds. Kennedy wrote the Court’s opinion (joined by Chief Justice Roberts, and Justices Thomas, Breyer, Alito, Kagan, and Gorsuch). Justice Ginsburg dissented and was joined by Sotomayor.

It is unsurprising that Kennedy wrote for the Court. He has, more than any other justice, shaped and defined same-sex rights, but here he acknowledges their potential limits. Early in the opinion, Kennedy says this is a conflict between “the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services” and “the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.”*

Phillips raised two basic claims against Colorado. First, he argued the state’s decisions, if implemented, would effectively compel him to speak in a manner that conflicted with his personal convictions. To what degree, Phillips would ask, should we allow the government to require the articulation of a point of view? Kennedy effectively punts on this question. There are lots of complexities, he acknowledges, but does little else. Does speech change based on the nature of the cake? Must it have words and symbols or is a generic cake also “speech?” Does the fact the cake may be known to be connected to the baker, in public, at the reception, further this sense of “speech?” He declines to get into these matters because of the strength of the stronger religious claim.

Phillips argues Colorado’s actions limit his Free Exercise of religion because of how he views the connection between the creative process and his faith. By requiring him to bake the cake, the state would be infringing on the relationship between his religious belief that marriage is between one man and a woman and the behavior of making the cake, which contradicts that belief. Kennedy, on several occasions, extols the sincerity and depth of Phillips’ religious convictions, so the nature or propriety of the belief was never an issue.

Presented with this question, Kennedy has two directions he might go. He could argue, for a strong religious liberty claim, that laws like Colorado’s, that infringe on religious liberty when there is a conflict with a sincerely held belief, are unconstitutional unless they make suitable accommodations for religion. This sort of ruling would have furnished a broad protection for people like Phillips in a variety of contexts–photographers, florists, coordinators, printers, etc… Kennedy did not go down this path.

Instead, Kennedy shifted away from the substance of the law or the contours of Free Exercise, and went instead toward process, or the manner in which Colorado implemented the law. Relying on the reasoning from Smith, Kennedy examined the extent to which Colorado’s implementation of the law was neutral toward religion. The majority here concluded Colorado demonstrated hostility and animus toward religion. For evidence to support this claim, Kenned references Phillips’ treatment at the hands of the Colorado Civil Rights Commission. First, Kennedy cites two instances when Commissioners, who were in the process of holding public hearings on the matter, made disparaging statements. At an on-the-record meeting, one commissioner said Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state.” While this could be construed as benign, to a degree, Kennedy says comments at a later meeting, by a separate commissioner, cast a different light. That commissioner noted,

“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where 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.”

These comments were not challenged by any other commissioner. Kennedy delivers a devastating summary of these comments. “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. Further, comparing Phillips’ faith to the Holocaust and slavery is “inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law…”**

Second, Kennedy notes that Phillips was treated differently from other bakers who were in similar circumstances. William Jack visited three Colorado bakeries and requested two separate cakes

“made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] . . . ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’ [Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’ ”***

When bakers refused to produce such cakes, Jack filed a complaint against all three bakers on the grounds he was being discriminated against on the basis of religion. When the Colorado Civil Rights Commission handled these claims, it determined the bakers properly declined because the messages were derogatory and demeaning. But when the Commission examined Phillips, it determined he should bake the cake even if it offended his beliefs because any message or theory, as Kennedy wrote, “the requested cake would carry would be attributed to the customer, not to the baker. Yet the [Commission] did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.” In essence, according to Kennedy, the Commission handled claims differently and there is evidence Phillips’ religion was a critical part of that distinction.

Colorado, Kennedy charged, revealed a lack of neutrality toward religion and a hostility toward religious points of view. Citing Lukumi, which applied the Smith standard, Kennedy argues the Constitution forbids government from showing this sort of hostility toward religious beliefs.+ Therefore, Colorado’s ruling against Phillips is reversed.

Kennedy’s ruling does NOT deal with the nature of the Colorado law, nor does it touch on similarly situated business owners within the industry. So, you can argue, I think reasonably, that the Court did not address the major issues surrounding the basic conflict between religious liberty and same-sex marriage or LGBTQ rights. The Court did not examine the nature of the religious liberty claim per se, at least outside of the sincerity of Phillips’ beliefs. The Court did not establish the extent to which religious liberty is a legitimate foundation for Phillips’ decision. And, when the Court did look at some hypotheticals, it did not get too specific. Kennedy notes that surely pastors would have protection against being forced to conduct ceremonies, but beyond that Kennedy does not tread.

The opinion also fails to deal with the speech claims in Phillips’ case. Justice Thomas’ concurring opinion looks at the speech claim more fully, and he reasons that similarly situated business owners should have robust speech protections against these kinds of government requirements.

Justice Kagan, joined by Breyer, signs off fully on the Court’s opinion, but she elaborates on Kennedy’s handling of the “other bakers” and their cases. Kagan argues there is an adequate distinction between Phillips’ case and the “other bakers.” She says the other bakers could legitimately claim to withhold services no matter who made similar requests, so their decision was not based on the status or class of the person asking for the service. Whereas Phillips, she thinks, only chose not deliver the cake for a same-sex couple, and he would have created the identical cake for an opposite sex couple. In her mind, this differentiates the two sets of cases. One can conclude, I think, absent the animosity, Kagan and Breyer would rule to support the state’s power to require business owners to provide publicly available services.

Justice Gorsuch concurs primarily to disagree with Kagan’s concurrence. Gorsuch believes Kagan is mischaracterizing the two sets of cases and that, in the end, they are quite similar claims. He also argues, interestingly, about the self-serving nature of the standards at work. He says the level of generality or specificity is key when handling these cases. If the objects at issue are looked at as simply cakes, or flowers, any refusal to bake, or arrange, seems absurd, but if they are looked at as messages, symbols, and communicative conduits, the refusal seems much more reasonable. He claims the Commission took a general approach for Phillips but a particular approach with the other bakers. He things the specific approach is warranted, otherwise the religious elements get lost. After all, is it communion, or is it merely wine and bread?

Justice Ginsburg, joined by Sotomayor, dissented. Essentially, she agrees with Kagan’s understanding of the “other bakers” cases and fails to see how the comments of two commissioners should be sufficient to justify the Court’s decision. She would uphold the state’s ability to force Phillips to either bake the cake or get out of the wedding cake business.

In summary, I think people should be careful when they discuss this case. This is not a major victory for religious liberty and neither is it a significant defeat for the LGBTQ community. Naturally, if forced to choose, the religious liberty advocates won something, but it could prove to be marginal. Also, I think it is fair to challenge Kennedy’s reasoning because it fails to draw sharp lines on the major issues coursing through the facts. This is not unusual because the Court frequently settles matters on the most limited grounds available, but there is little here to suggest precisely how Kennedy might rule on a different set of facts. If Kennedy retires, as rumors still suggest, it would make his seat even more pivotal.

This is much ado about something, but how much remains to be seen.

*It is tempting to read quite a bit into this categorization. Notice, Kennedy does not set this up as a conflict between a federally or constitutionally protected class and First Amendment rights, but as a clash between the Amendment and a state government’s ability to protect a class of citizens in a manner that might conflict with fundamental rights. Were Kennedy a consistent, straightforward jurist, this might lead one to believe he will view similar cases in a similar fashion, which should give the advantage to religious claims, but Kennedy does not fit simple schools of thought. Remember, this is the judge who, in Windsor, waxed eloquent about the virtues of federalism, which prevented the federal government from defining marriage, and Obergefell, where thoughts of federalism were largely lost in the discussion.

**Kennedy references the disagreement about using such comments as indicators of motive, especially in legislative debates. The Court has wrestled with Scalia’s legacy on this question. However, Kennedy says the Commission was an adjudicative body, so these comments portray a particularly odious kind of bias that should be absent in such settings.

***This description comes from Justice Ginsburg’s dissent, which is pulled from the Court’s documentation, so I believe it to be entirely accurate.

+In Lukumi, the Court ruled that since the government did not show neutrality toward religion, the government must show a compelling interest in justifying the religious discrimination AND that its discrimination was narrowly tailored so as to minimize the discrimination as much as possible. Here in Masterpiece, Kennedy shuts off at this point and does not get into a strict scrutiny analysis. I am still trying to work through why he made this choice. My guess is that had he triggered strict scrutiny, it is possible Kagan and Breyer would have ruled differently. Who knows for now.