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No Clear Answers for Employers: Colorado Baker Who Refused to Create Wedding Cake for Same Sex Nuptials Prevails in Supreme Court

On June 8, 2018 by Schnader in Labor and Employment

By Scott J. Wenner

On Monday, June 4, the United States Supreme Court (“Court”) announced its decision in the highly publicized Masterpiece Cakeshop case. Employers and business owners were among many closely watching this case, hoping for insight on how to handle complicated situations involving competing rights of business owners, customers and/or employees, where charges of discrimination could result regardless of the employer’s or owner’s response. The Court’s decision in this case did not create any new law to guide businesses, but it does further highlight the need for employers to create processes to recognize and effectively manage the risks that arise when religious beliefs and expression intersect with antidiscrimination rights and protections.

In Masterpiece Cakeshop, the Colorado Civil Rights Commission found that the refusal of a devout Christian baker, Jack Phillips, to create and sell one of his highly artistic wedding cakes to a same sex couple on religious grounds was discrimination based on sexual orientation that violated Colorado’s public accommodations law. Like the laws of more than 20 other states, Colorado’s law prohibits any Colorado place of business that sells to the public from discriminating on the basis of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry. A state court of appeals affirmed the Commission’s finding, and the Colorado Supreme Court declined to hear the case, setting the stage for review by the nation’s highest court. The Court reversed, finding in a 7-2 decision that the Commission’s actions violated the Free Exercise Clause of the First Amendment and were invalid. Although not an employment law case, both the business community and LGBT advocates anticipated an outcome that would reverberate into employment law as well.

Masterpiece Cakeshop presented an intriguing collision of important rights: freedom of expression of religious beliefs and freedom of speech (in the form of designing a creative wedding cake) on the one hand, and the right to be free from unlawful discrimination in public accommodations on the other. However, the Court’s opinion, written by Justice Anthony Kennedy, decided no broadly applicable principles of constitutional or anti-bias law, nor did it provide clear guidance to a business owner whose religious principles and/or free speech rights conflict with the rights of others protected by public accommodations laws. To the contrary, the Court decided the case on narrow grounds, based on the facts unique to that case. Indeed, to avoid any doubt over the limited reach of the decision, Justice Kennedy wrote: “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Why Did the Court Reverse the State Court of Appeals and Invalidate the Findings and Order of the Colorado Commission?

Without deciding whether Phillips’s religious objections to creating and producing a wedding cake for a gay wedding trumped the interests of the state’s Civil Rights Commission in protecting gay persons from discrimination, the Court nevertheless ruled in favor of Mr. Phillips. The seven-member majority found that the consideration of this case by the Colorado Civil Rights Commission “was inconsistent with the state’s obligation of religious neutrality that the Constitution requires” when considering the expression of a sincerely-held religious viewpoint. Justice Kennedy observed that the reason and motive for Phillips’s refusal to create the wedding cake were based on his sincere religious beliefs and convictions, thus the “delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.”

In support of its key finding, the majority opinion cited several examples of a clear and impermissible hostility among members of the Commission toward the sincere religious beliefs that motivated Phillips’s objection to creating a cake for a same sex wedding. These included statements by Commissioners at formal, public hearings endorsing the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain; disparaging Phillips’ faith as despicable and characterizing it as merely rhetorical; and comparing Phillips’s beliefs to slavery and the Holocaust – all without objection from fellow Commissioners or comment in its legal briefs. The Court also observed that in several other cases the Commission had ruled in favor of other bakers who objected to creating cakes with anti-gay messages and found this unexplained inconsistency to be further evidence that Phillips’s sincerely held religious beliefs were not considered with the religious neutrality required by the Constitution. It also noted that the state appellate court failed to even refer to the hostile comments of the Commission members and found that it failed to properly analyze the inconsistent treatment the Commission accorded Phillips’s religious expressions compared to how it treated the views of the other bakers.


Although the Supreme Court invalidated the Commission’s finding that Phillips’s actions constituted unlawful discrimination based on sexual orientation, it did not absolve Phillips from the claim of discrimination on the merits as the opinion never had to address the merits. Thus, the Court’s action should not be mistaken as granting a license to discriminate based on sexual orientation whenever a business owner’s sincere religious beliefs might motivate his or her action. While suggesting that limited exceptions might exist in given cases based on religious objections, the opinion cautioned that “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.” In this and in other places in his opinion, Justice Kennedy carefully confirmed that this decision brought no change in the law.

It is important that employers ensure that none of their decision makers, supervisors and other agents who may have heard the headline but failed to read the story understand that Masterpiece Cakeshop changes nothing in the workplace setting. Whether or not the employment laws of jurisdiction(s) in which an employer operates specifically protect members of the LGBT community, the invocation by a supervisor of a religious belief as the basis for taking an adverse action against anyone – whether or not that person is in a protected class – is fraught with risk and raises complex and highly nuanced legal questions. Employers should obtain guidance from experienced legal counsel before responding if faced with similar circumstances, and should have counsel develop or revisit the processes already in place to handle these delicate situations. This may be a good time to provide additional training for supervisors and other employees about the risks of taking action on their own or expressing views of any kind, including religious views, that could lead a customer or coworker to file a charge of discrimination.

Employers and business owners may be frustrated that this highly visible case raises new questions for legal compliance, while resolving little. As in most employment matters, the best approach may be to consult with counsel, establish and disseminate standard processes, train employees, and document incidents as they occur.