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Does a Christian Baker Have to Bake a Cake for a Gay Wedding? The Supreme Court Says, 'No' (And It's Not Entirely Wrong)

By Dustin Rowles | Industry | June 4, 2018 |

By Dustin Rowles | Industry | June 4, 2018 |


Update Number 2: On the majority opinion alone, a longtime reader and actual practicing lawyer, Mark D., sends this summary along:

SCOTUS did NOT decide that baker could discriminate; they dodged that question.

SCOTUS decided that individual members of Colorado Eq Rts Commission were openly hostile to baker’s beliefs—therefore, he was not treated fairly by the Comm. SCOTUS passingly noted that, if he had been treated fairly, Commission could have still determined that public interest in ensuring equal treatment outweighed baker’s resistance.

“While the issues here are difficult to resolve, it must be concluded that the State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed.”

In dodging the question of whether discrimination would be generally permitted, Kennedy noted, “it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

Update Number 1: I note that my opinion of this ruling below is based on the flavor of the concurring and dissenting opinions, but the actual ruling is tailored to the facts of this very specific case (where legal marriage was not yet legal) and does not specifically apply to the broader question of whether a baker can discriminate based on a person’s religion. However, the concurring opinions will almost certainly be cited in similar cases for years to come.

This is a much tougher case that one might believe at first blush, a case where I hate the outcome, but I don’t completely disagree with the reasoning. It basically pits discrimination laws against First Amendment rights, but ultimately, I both agree with the 7 member majority and the two-person dissent (two of the liberal justices joined the majority, while two of the liberal justices, Sotomayor and Ginsburg, wrote the dissent).

The question the case asks is whether a Christian baker is required under the Constitution to bake a cake for a same-sex marriage. My liberal brain says, “Fuck you. Bake the cake,” but my law school brain says, “You also have to respect the First Amendment rights of Christians — or any other religion.”

It may be easier to understand why this is sound legal reasoning by understanding the inverse, at least according to the majority opinion written by Justice Kennedy. The opinion seems to suggest that if a Christian baker were required to bake a cake for a same-sex couple, then a gay (or straight) baker might be compelled to bake a cake for a Christian couple who ask for a cake that quotes Bible verses and says, “Gay marriage is a detestable sin.” Obviously, that would be an abhorrent outcome.

As Ginsburg and Sotomayor’s dissent suggests, however, there is a major distinction here between the cake that the gay couple asked for in this case and a cake where the customer asks for a bigoted message, namely that the same-sex couple in this case did not ask for a cake specific to a same-sex wedding. They asked for a wedding cake that the baker would have sold to any other couple. The baker denied it to them based not on the cake’s message, but on the identity of the couple receiving it. The cake was just a cake; they refused to sell it to them because it was being used for a same-sex marriage.

The majority opinion did not want to make this distinction, however, and I believe — like Ginsberg and Sotomayer — that it should have. If a gay couple wants the same wedding cake a baker would have made for a heterosexual couple, the baker should bake it for them. If a couple asks for a cake specifically tailored for a same-sex wedding, however, I agree with the majority opinion that a Christian baker should not have to bake a cake with a message that goes against her religious beliefs.

Likewise, if an evangelical came to a gay baker and asked for a cake that the gay baker would make for any other couple, the gay baker should not be allowed to discriminate based on the views held by the evangelical customer. However, if the evangelical customer asked the gay baker to bake a cake with a message abhorrent to the gay baker, the gay baker should not have to bake it.

The majority opinion here, however, states that regardless of the type of cake being baked, a baker can refuse to bake a cake if the customers’ beliefs are abhorrent to a baker’s religion.

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Dustin is the founder and co-owner of Pajiba. You may email him here, follow him on Twitter, or listen to his weekly TV podcast, Podjiba.