138 S. Ct. 1719 (2018)
In the summer of 2012, Charlie Craig and Dave Mullins, a same-sex couple planning to marry legally in Massachusetts and host a reception in Denver, visited Masterpiece Cakeshop in Lakewood, Colorado, owned and operated by Jack Phillips.1 Phillips, an expert baker and devout Christian who had owned the shop for twenty-four years, informed the couple that he would not create a wedding cake for their same-sex wedding because of his religious opposition to same-sex marriage.2 He offered to sell them other baked goods such as birthday cakes, shower cakes, cookies, and brownies.3 Craig and Mullins filed a discrimination complaint with the Colorado Civil Rights Division alleging that they had been denied full and equal service because of their sexual orientation in violation of the Colorado Anti-Discrimination Act.4
The Division investigated the complaint.5 It found probable cause that Phillips had violated the Act.6 The Division determined that on multiple occasions he had turned away potential customers on the basis of sexual orientation.7 Phillips had declined to sell custom wedding cakes to about six other same-sex couples.8 The matter was referred to the Colorado Civil Rights Commission.9 The Commission sent the case to a state Administrative Law Judge for a formal hearing.10
The ALJ granted summary judgment in favor of Craig and Mullins after rejecting Phillips' constitutional claims.11 The Commission affirmed the decision in full.12 It ordered Phillips to cease and desist from discriminating against same-sex couples.13 The Commission also required comprehensive staff training on the public accommodations provisions of the Act.14 Phillips had to submit quarterly compliance reports for two years documenting patrons denied service.15
Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission's legal determinations and remedial order in 2016.16 The Colorado Supreme Court declined to hear the case.17 During public hearings before the Commission in May and July 2014, some commissioners stated that religious beliefs cannot legitimately be carried into the public sphere or commercial domain.18 They described Phillips' invocation of his sincerely held religious beliefs as one of the most despicable pieces of rhetoric that people can use.19 They compared it to defenses of slavery and the Holocaust.20 In three separate cases decided while Phillips' proceedings were pending, the Civil Rights Division concluded that other bakers had acted lawfully in declining to create cakes with decorations or messages that demeaned gay persons or gay marriages.21
Phillips petitioned the United States Supreme Court for a writ of certiorari, which the Court granted in 2017.22
Whether the Colorado Civil Rights Commission's adjudication of Jack Phillips' refusal to create a wedding cake for a same-sex couple demonstrated impermissible hostility toward his religious beliefs?23
The Free Exercise Clause requires the government to proceed in a manner neutral toward and tolerant of religious beliefs.24 The government cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.25 Factors relevant to the assessment of governmental neutrality include the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.26
Yes. The Commission's treatment of Phillips' case showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.27 During public hearings in May and July 2014, some commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain.28 They disparaged Phillips' faith as despicable and characterized it as merely rhetorical.29
They compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.30 No commissioners objected to the comments.31 The comments were not mentioned in the later state-court ruling or disavowed in the briefs filed here.32 These comments cast doubt on the fairness and impartiality of the Commission's adjudication of Phillips' case.33
The Commission's actions in this case violated the Free Exercise Clause by failing to provide neutral and respectful consideration of Phillips' religious objection.34
Related opinions on this issue
Joined by Justice Breyer
Justice Kagan concurred in the judgment.35 She elaborated that the different outcomes in the Jack cases and the Phillips case could have been justified by a plain reading and neutral application of Colorado law untainted by any bias against a religious belief.36 The state agencies' consideration was disquieting because a proper basis for distinguishing the cases was available and in fact was obvious.37
The three bakers in the Jack cases did not violate CADA because they refused to make a cake they would not have made for any customer.38 In contrast, Phillips refused a cake he would have made for opposite-sex couples.39 This distinction could have been drawn without any religious hostility.40
Joined by Justice Sotomayor
Justice Ginsburg dissented.41 The different outcomes the Court features do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities justify reversing the judgment below.
The bakers would have refused to make a cake with Jack's requested message for any customer, regardless of his or her religion.42 Jack suffered no service refusal on the basis of his religion or any other protected characteristic. Phillips would not sell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others.43
Whether the Commission's different treatment of Phillips' case compared to cases involving other bakers who refused to create cakes with anti-gay messages violated the requirement of religious neutrality under the First Amendment?44
Yes. The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker.47 Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism.48 The Division also considered that each bakery was willing to sell other products to the prospective customers.49
The Commission found Phillips' willingness to do the same irrelevant.50 The State Court of Appeals' brief discussion of this disparity of treatment does not answer Phillips' concern that the State's practice was to disfavor the religious basis of his objection.51 The Commission's consideration of Phillips' religious objection did not accord with its treatment of these other objections.52
The Commission's disparate consideration of Phillips' case compared to the cases of the other bakers suggests a lack of religious neutrality.53
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Joined by Justice Alito
Justice Gorsuch concurred.54 He noted that the Commission failed to act neutrally by applying a consistent legal rule.55 It chose to distinguish carefully between intended and knowingly accepted effects in one case but not the other.56
The real explanation for the Commission's discrimination was its wish to condemn Phillips for expressing a message it found offensive.57 No bureaucratic judgment condemning a sincerely held religious belief as irrational or offensive will ever survive strict scrutiny under the First Amendment.58
Joined by Justice Gorsuch
Justice Thomas concurred in part and in the judgment.59 He agreed that the Colorado Civil Rights Commission violated Jack Phillips' right to freely exercise his religion. As Justice Gorsuch explains, the Commission treated Phillips' case differently from a similar case involving three other bakers, for reasons that can only be explained by hostility toward Phillips' religion.60
Although the Commissioners' comments are certainly disturbing, the discriminatory application of Colorado's public-accommodations law is enough on its own to violate Phillips' rights.61 While Phillips rightly prevails on his free-exercise claim, he writes separately to address the free-speech claim in detail, noting that the Colorado Court of Appeals resolved the factual dispute in Phillips' favor by describing his conduct as a refusal to design and create a cake to celebrate a same-sex wedding.62