Big Questions Still Open After U.S. Supreme Court Baker Decision

by | Jun 19, 2018 | Blog Posts

After 6 years of litigation, the U.S. Supreme Court ruled recently on the case of a baker who refused to bake a wedding cake for a same sex couple on religious grounds. The decision found in favor of the baker, but on narrow grounds that don’t resolve the broader constitutional issues involving gay rights, free speech and religious freedom.

The Supreme Court in a 7-2 decision held that the Colorado Civil Rights Commission showed hostility toward the baker based on his religious beliefs and did not offer a religion-neutral forum. Justice Kennedy, in writing the majority opinion, noted that the decision was narrow. “The commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.” He also indicated that in another case there could be a different result stating that “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.”

While Justice Kennedy avoided the broader issues, Justice Ginsburg addressed them clearly. Her dissent focused on a previous decision by the Colorado Commission stating that bakeries could refuse to make a cake that would have had “decorations that demeaned gay persons or gay marriages.” She noted there was a distinction between a bakery that refused to make a cake for anyone with anti-LGBTQ language on it and a bakery that refused to make a cake for someone in particular― which they would have made for others ― because that someone was a member of the LGBTQ community. “When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding ― not a cake celebrating heterosexual weddings or same-sex weddings ― and that is the service [the couple] were denied.”

Although this case didn’t resolve the important questions, there is hope that if faced with the direct issue, a majority of the Supreme Court would rule against a business that refused to provide products or services to gays for religious reasons. However, that is a question for another day. In the meantime, countless other discrimination cases will continue through the courts in the hopes of a more favorable decision.