The U.S. Supreme Court’s ruling in favor of a Colorado baker who refused to create a wedding cake for a gay couple is a step backward in the cause for equal rights and an invitation to those who would discriminate to bring more test cases before the courts. Still, the majority opinion by Justice Anthony Kennedy was a painstaking effort to balance same-sex rights, free speech and religious freedom. It is written narrowly and focuses on the specifics of the baker’s treatment at the state level, and it ensures the debate over gay rights will continue to play out in the courts and in the nation’s political dialogue.
Writing for the 7-2 majority, Kennedy held that the Colorado Civil Rights Commission had shown "clear and impermissible hostility" toward the baker, Jack Phillips, who declined to create a wedding cake for a gay couple and cited religious grounds. David Mullins and Charlie Craig visited the bakery in 2012, with plans to marry in Massachusetts (which, unlike Colorado, recognized same-sex marriage at the time) and hold a reception in Denver. Phillips argued that using his artistic talents in celebrating an occasion that conflicted with his religious views amounted to a violation of his free speech rights. The couple complained to the commission, which ruled in their favor, as did the Colorado Court of Appeals.
In his opinion, Kennedy faulted the comments made by some commissioners at the state proceeding, maintaining that they disparaged Phillips’ faith as "despicable," and wrongly held that "religious beliefs cannot legitimately be carried into the public sphere." Because of that, Kennedy said, the commission’s treatment of Phillips violated the "state’s duty under the First Amendment not to base laws or regulations on hostility" to any particular religious view. The remarks during the state case, Kennedy found, "cast doubt on the fairness and impartiality of the commission’s adjudication." That kept the state from being able to balance competing rights "with the religious neutrality that the Constitution requires," he wrote.
Kennedy was careful to close the door on any effort to draw sweeping interpretations of the ruling. He noted that religious objections do not generally allow business owners to deny goods and services to the public. But he noted that Phillips acted before Colorado recognized the validity of gay marriage, and before the Supreme Court, in a landmark ruling in 2015, legalized same-sex marriage nationwide. At the very least, he wrote, Phillips was owed some latitude, not a legal process that "presupposes the illegitimacy of religious beliefs."
The number of concurring opinions in the case reflects the narrowness of Monday’s court decision. Kennedy, writing for the majority, though, sought to lay a marker, declaring clearly that gay persons "cannot be treated as social outcasts or as inferior in dignity and worth." At the same time, Kennedy noted, philosophical objections to gay marriage "are protected views and in some instances protected forms of expression." This case was about neutral treatment, he wrote, and the outcomes of future cases like this "await further elaboration in the courts."
The court punted this time on this hot-button issue, giving a clear victory neither for the defendants on religious liberty or for the plaintiffs on gay rights. Yet in her dissenting opinion, Justice Ruth Bader Ginsburg noted "there is much in the court’s opinion with which I agree’’ and quoted portions that reaffirmed gay rights protections. Those passages provide some hope for greater clarity and clearer protections for equality regardless of sexual orientation in future court opinions.