December 5, 2017
WRIT OF CERTIORARI TO THE COURT OF APPEALS OF COLORADO
Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and
operated by Jack Phillips, an expert baker and devout
Christian. In 2012 he told a same-sex couple that he would
not create a cake for their wedding celebration because of
his religious opposition to same-sex marriages-marriages that
Colorado did not then recognize-but that he would sell them
other baked goods, e.g., birthday cakes. The couple
filed a charge with the Colorado Civil Rights Commission
(Commission) pursuant to the Colorado Anti-Discrimination Act
(CADA), which prohibits, as relevant here, discrimination
based on sexual orientation in a "place of business
engaged in any sales to the public and any place offering
services ... to the public." Under CADA's
administrative review system, the Colorado Civil Rights
Division first found probable cause for a violation and
referred the case to the Commission. The Commission then
referred the case for a formal hearing before a state
Administrative Law Judge (ALJ), who ruled in the couple's
favor. In so doing, the ALJ rejected Phillips' First
Amendment claims: that requiring him to create a cake for a
same-sex wedding would violate his right to free speech by
compelling him to exercise his artistic talents to express a
message with which he disagreed and would violate his right
to the free exercise of religion. Both the Commission and the
Colorado Court of Appeals affirmed.
The Commission's actions in this case violated the Free
Exercise Clause. Pp. 9-18.
(a) The laws and the Constitution can, and in some instances
must, protect gay persons and gay couples in the exercise of
their civil rights, but religious and philosophical
objections to gay marriage are protected views and in some
instances protected forms of expression. See Obergefell
v. Hodges, 576 U.S. ___, ___. While it is unexceptional
that Colorado law can protect gay persons in acquiring
products and services on the same terms and conditions as are
offered to other members of the public, the law must be
applied in a manner that is neutral toward religion. To
Phillips, his claim that using his artistic skills to make an
expressive statement, a wedding endorsement in his own voice
and of his own creation, has a significant First Amendment
speech component and implicates his deep and sincere
religious beliefs. His dilemma was understandable in 2012,
which was before Colorado recognized the validity of gay
marriages performed in the State and before this Court issued
United States v. Windsor, 570 U.S. 744, or
Obergefell. Given the State's position at the
time, there is some force to Phillips' argument that he
was not unreasonable in deeming his decision lawful. State
law at the time also afforded storekeepers some latitude to
decline to create specific messages they considered
offensive. Indeed, while the instant enforcement proceedings
were pending, the State Civil Rights Division concluded in at
least three cases that a baker acted lawfully in declining to
create cakes with decorations that demeaned gay persons or
gay marriages. Phillips too was entitled to a neutral and
respectful consideration of his claims in all the
circumstances of the case. Pp. 9-12.
(b) That consideration was compromised, however, by the
Commission's treatment of Phillips' case, which
showed elements of a clear and impermissible hostility toward
the sincere religious beliefs motivating his objection. As
the record shows, some of the commissioners at the
Commission's formal, public hearings endorsed the view
that religious beliefs cannot legitimately be carried into
the public sphere or commercial domain, disparaged
Phillips' faith as despicable and characterized it as
merely rhetorical, and compared his invocation of his
sincerely held religious beliefs to defenses of slavery and
the Holocaust. No commissioners objected to the comments. Nor
were they mentioned in the later state-court ruling or
disavowed in the briefs filed here. The comments thus cast
doubt on the fairness and impartiality of the
Commission's adjudication of Phillips' case.
Another indication of hostility is the different treatment of
Phillips' case and the cases of other bakers with
objections to anti-gay messages who prevailed before the
Commission. 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. Yet
the Division did not address this point in any of the cases
involving requests for cakes depicting anti-gay marriage
symbolism. The Division also considered that each bakery was
willing to sell other products to the prospective customers,
but the Commission found Phillips' willingness to do the
same irrelevant. 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. Pp. 12-16.
(c) For these reasons, the Commission's treatment of
Phillips' case violated the State's duty under the
First Amendment not to base laws or regulations on hostility
to a religion or religious viewpoint. The government,
consistent with the Constitution's guarantee of free
exercise, cannot impose regulations that are hostile to the
religious beliefs of affected citizens and cannot act in a
manner that passes judgment upon or presupposes the
illegitimacy of religious beliefs and practices. Church
of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520.
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."
Id., at 540. In view of these factors, the record
here demonstrates that the Commission's consideration of
Phillips' case was neither tolerant nor respectful of his
religious beliefs. The Commission gave "every
appearance, " id., at 545, of adjudicating his
religious objection based on a negative normative
"evaluation of the particular justification" for
his objection and the religious grounds for it, id.,
at 537, but government has no role in expressing or even
suggesting whether the religious ground for Phillips'
conscience-based objection is legitimate or illegitimate. The
inference here is thus that Phillips' religious objection
was not considered with the neutrality required by the Free
Exercise Clause. 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. But the official expressions of
hostility to religion in some of the commissioners'
comments were inconsistent with that requirement, and the
Commission's disparate consideration of Phillips'
case compared to the cases of the other bakers suggests the
same. Pp. 16-18.
370 P.3d 272, reversed.
a same-sex couple visited Masterpiece Cakeshop, a bakery in
Colorado, to make inquiries about ordering a cake for their
wedding reception. The shop's owner told the couple that
he would not create a cake for their wedding because of his
religious opposition to same-sex marriages-marriages the
State of Colorado itself did not recognize at that time. The
couple filed a charge with the Colorado Civil Rights
Commission alleging discrimination on the basis of sexual
orientation in violation of the Colorado Anti-Discrimination
Commission determined that the shop's actions violated
the Act and ruled in the couple's favor. The Colorado
state courts affirmed the ruling and its enforcement order,
and this Court now must decide whether the Commission's
order violated the Constitution.
case presents difficult questions as to the proper
reconciliation of at least two principles. The first is the
authority of a State and its governmental entities to protect
the rights and dignity of gay persons who are, or wish to be,
married but who face discrimination when they seek goods or
services. The second is the right of all persons to exercise
fundamental freedoms under the First Amendment, as applied to
the States through the Fourteenth Amendment.
freedoms asserted here are both the freedom of speech and the
free exercise of religion. The free speech aspect of this
case is difficult, for few persons who have seen a beautiful
wedding cake might have thought of its creation as an
exercise of protected speech. This is an instructive example,
however, of the proposition that the application of
constitutional freedoms in new contexts can deepen our
understanding of their meaning.
the difficulties in this case is that the parties disagree as
to the extent of the baker's refusal to provide service.
If a baker refused to design a special cake with words or
images celebrating the marriage-for instance, a cake showing
words with religious meaning-that might be different from a
refusal to sell any cake at all. In defining whether a
baker's creation can be protected, these details might
make a difference.
same difficulties arise in determining whether a baker has a
valid free exercise claim. A baker's refusal to attend
the wedding to ensure that the cake is cut the right way, or
a refusal to put certain religious words or decorations on
the cake, or even a refusal to sell a cake that has been
baked for the public generally but includes certain religious
words or symbols on it are just three examples of
possibilities that seem all but endless.
the confluence of speech and free exercise principles might
be in some cases, the Colorado Civil Rights Commission's
consideration of this case was inconsistent with the
State's obligation of religious neutrality. The reason
and motive for the baker's refusal were based on his
sincere religious beliefs and convictions. The Court's
precedents make clear that the baker, in his capacity as the
owner of a business serving the public, might have his right
to the free exercise of religion limited by generally
applicable laws. Still, 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
all these considerations, it is proper to hold that whatever
the outcome of some future controversy involving facts
similar to these, the Commission's actions here violated
the Free Exercise Clause; and its order must be set aside.
Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb
of Denver. The shop offers a variety of baked goods, ranging
from everyday cookies and brownies to elaborate
custom-designed cakes for birthday parties, weddings, and
Phillips is an expert baker who has owned and operated the
shop for 24 years. Phillips is a devout Christian. He has
explained that his "main goal in life is to be obedient
to" Jesus Christ and Christ's "teachings in all
aspects of his life." App. 148. And he seeks to
"honor God through his work at Masterpiece
Cakeshop." Ibid. One of Phillips' religious
beliefs is that "God's intention for marriage from
the beginning of history is that it is and should be the
union of one man and one woman." Id., at 149.
To Phillips, creating a wedding cake for a same-sex wedding
would be equivalent to participating in a celebration that is
contrary to his own most deeply held beliefs.
met Charlie Craig and Dave Mullins when they entered his shop
in the summer of 2012. Craig and Mullins were planning to
marry. At that time, Colorado did not recognize same-sex
marriages, so the couple planned to wed legally in
Massachusetts and afterwards to host a reception for their
family and friends in Denver. To prepare for their
celebration, Craig and Mullins visited the shop and told
Phillips that they were interested in ordering a cake for
"our wedding." Id., at 152 (emphasis
deleted). They did not mention the design of the cake they
informed the couple that he does not "create"
wedding cakes for same-sex weddings. Ibid. He
explained, "I'll make your birthday cakes, shower
cakes, sell you cookies and brownies, I just don't make
cakes for same sex weddings." Ibid. The couple
left the shop without further discussion.
following day, Craig's mother, who had accompanied the
couple to the cakeshop and been present for their interaction
with Phillips, telephoned to ask Phillips why he had declined
to serve her son. Phillips explained that he does not create
wedding cakes for same-sex weddings because of his religious
opposition to same-sex marriage, and also because Colorado
(at that time) did not recognize same-sex marriages.
Id., at 153. He later explained his belief that
"to create a wedding cake for an event that celebrates
something that directly goes against the teachings of the
Bible, would have been a personal endorsement and
participation in the ceremony and relationship that they were
entering into." Ibid, (emphasis deleted).
most of its history, Colorado has prohibited discrimination
in places of public accommodation. In 1885, less than a
decade after Colorado achieved statehood, the General
Assembly passed "An Act to Protect All Citizens in Their
Civil Rights, " which guaranteed "full and equal
enjoyment" of certain public facilities to "all
citizens, " "regardless of race, color or previous
condition of servitude." 1885 Colo. Sess. Laws pp.
132-133. A decade later, the General Assembly expanded the
requirement to apply to "all other places of public
accommodation." 1895 Colo. Sess. Laws ch. 61, p. 139.
the Colorado Anti-Discrimination Act (CADA) carries forward
the state's tradition of prohibiting discrimination in
places of public accommodation. Amended in 2007 and 2008 to
prohibit discrimination on the basis of sexual orientation as
well as other protected characteristics, CADA in relevant
part provides as follows:
"It is a discriminatory practice and unlawful for a
person, directly or indirectly, to refuse, withhold from, or
deny to an individual or a group, because of disability,
race, creed, color, sex, sexual orientation, marital status,
national origin, or ancestry, the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or
accommodations of a place of public accommodation."
Colo. Rev. Stat. §24-34-601(2)(a) (2017).
defines "public accommodation" broadly to include
any "place of business engaged in any sales to the
public and any place offering services ... to the public,
" but excludes "a church, synagogue, mosque, or
other place that is principally used for religious
purposes." §24-34-601(1). CADA establishes an
administrative system for the resolution of discrimination
claims. Complaints of discrimination in violation of CADA are
addressed in the first instance by the Colorado Civil Rights
Division. The Division investigates each claim; and if it
finds probable cause that CADA has been violated, it will
refer the matter to the Colorado Civil Rights Commission. The
Commission, in turn, decides whether to initiate a formal
hearing before a state Administrative Law Judge (ALJ), who
will hear evidence and argument before issuing a written
decision. See §§24-34-306, 24-4-105(14). The
decision of the ALJ may be appealed to the full Commission, a
seven-member appointed body. The Commission holds a public
hearing and deliberative session before voting on the case.
If the Commission determines that the evidence proves a CADA
violation, it may impose remedial measures as provided by
statute. See §24-34-306(9). Available remedies include,
among other things, orders to cease-and-desist a
discriminatory policy, to file regular compliance reports
with the Commission, and "to take affirmative action,
including the posting of notices setting forth the
substantive rights of the public." §24-34-605.
Colorado law does not permit the Commission to assess money
damages or fines. §§24-34-306(9), 24-34-605.
and Mullins filed a discrimination complaint against
Masterpiece Cakeshop and Phillips in August 2012, shortly
after the couple's visit to the shop. App. 31. The
complaint alleged that Craig and Mullins had been denied
"full and equal service" at the bakery because of
their sexual orientation, id., at 35, 48, and that
it was Phillips' "standard business practice"
not to provide cakes for same-sex weddings, id., at
Civil Rights Division opened an investigation. The
investigator found that "on multiple occasions, "
Phillips "turned away potential customers on the basis
of their sexual orientation, stating that he could not create
a cake for a same-sex wedding ceremony or reception"
because his religious beliefs prohibited it and because the
potential customers "were doing something illegal"
at that time. Id., at 76. The investigation found
that Phillips had declined to sell custom wedding cakes to
about six other same-sex couples on this basis. Id.,
at 72. The investigator also recounted that, according to
affidavits submitted by Craig and Mullins, Phillips' shop
had refused to sell cupcakes to a lesbian couple for their
commitment celebration because the shop "had a policy of
not selling baked goods to same-sex couples for this type of
event." Id., at 73. Based on these findings,
the Division found probable cause that Phillips violated CADA
and referred the case to the Civil Rights Commission.
Id., at 69.
Commission found it proper to conduct a formal hearing, and
it sent the case to a State ALJ. Finding no dispute as to
material facts, the ALJ entertained cross-motions for summary
judgment and ruled in the couple's favor. The ALJ first
rejected Phillips' argument that declining to make or
create a wedding cake for Craig and Mullins did not violate
Colorado law. It was undisputed that the shop is subject to
state public accommodations laws. And the ALJ determined that
Phillips' actions constituted prohibited discrimination
on the basis of sexual orientation, not simply opposition to
same-sex marriage as Phillips contended. App. to Pet. for
raised two constitutional claims before the ALJ. He first
asserted that applying CADA in a way that would require him
to create a cake for a same-sex wedding would violate his
First Amendment right to free speech by compelling him to
exercise his artistic talents to express a message with which
he disagreed. The ALJ rejected the contention that preparing
a wedding cake is a form of protected speech and did not
agree that creating Craig and Mullins' cake would force
Phillips to adhere to "an ideological point of
view." Id., at 75a. Applying CADA to the facts
at hand, in the ALJ's view, did not interfere with
Phillips' freedom of speech.
also contended that requiring him to create cakes for
same-sex weddings would violate his right to the free
exercise of religion, also protected by the First Amendment.
Citing this Court's precedent in Employment Div.,
Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872
(1990), the ALJ determined that CADA is a "valid and
neutral law of general applicability" and therefore that
applying it to Phillips in this case did not violate the Free
Exercise Clause. Id., at 879; App. to Pet. for Cert.
82a-83a. The ALJ thus ruled against Phillips and the cakeshop
and in favor of Craig and Mullins on both constitutional
Commission affirmed the ALJ's decision in full.
Id., at 57a. The Commission ordered Phillips to
"cease and desist from discriminating against . . .
same-sex couples by refusing to sell them wedding cakes or
any product [they] would sell to heterosexual couples."
Ibid. It also ordered additional remedial measures,
including "comprehensive staff training on the Public
Accommodations section" of CADA "and changes to any
and all company policies to comply with . . . this
Order." Id., at 58a. The Commission
additionally required Phillips to prepare "quarterly
compliance reports" for a period of two years
documenting "the number of patrons denied service"
and why, along with "a statement describing the remedial
actions taken." Ibid.
appealed to the Colorado Court of Appeals, which affirmed the
Commission's legal determinations and remedial order. The
court rejected the argument that the "Commission's
order unconstitutionally compels" Phillips and the shop
"to convey a celebratory message about same sex
marriage." Craig v. Masterpiece Cakeshop, Inc.,
370 P.3d 272, 283 (2015). The court also rejected the
argument that the Commission's order violated the Free
Exercise Clause. Relying on this Court's precedent in
Smith, supra, at 879, the court stated that the Free
Exercise Clause "does not relieve an individual of the
obligation to comply with a valid and neutral law of general
applicability" on the ground that following the law
would interfere with religious practice or belief. 370 P.3d,
at 289. The court concluded that requiring Phillips to comply
with the statute did not violate his free exercise rights.
The Colorado Supreme Court declined to hear the case.
sought review here, and this Court granted certiorari. 582
U.S. ___ (2017). He now renews his claims under the Free
Speech and Free Exercise Clauses of the First Amendment.
society has come to the recognition that gay persons and gay
couples cannot be treated as social outcasts or as inferior
in dignity and worth. For that reason the laws and the
Constitution can, and in some instances must, protect them in
the exercise of their civil rights. The exercise of their
freedom on terms equal to others must be given great weight
and respect by the courts. At the same time, the religious
and philosophical objections to gay marriage are protected
views and in some instances protected forms of expression. As
this Court observed in Obergefell v. Hodges, 576
U.S. ___ (2015), "[t]he First Amendment ensures that
religious organizations and persons are given proper
protection as they seek to teach the principles that are so
fulfilling and so central to their lives and faiths."
Id., at ___ (slip op., at 27). Nevertheless, while
those religious and philosophical objections are protected,
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. See Newman v. Piggy Park Enterprises,
Inc., 390 U.S. 400, 402, n. 5 (1968) (per
curiam); see also Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U.S.
557, 572 (1995) ("Provisions like these are well within
the State's usual power to enact when a legislature has
reason to believe that a given group is the target of
discrimination, and they do not, as a general matter, violate
the First or Fourteenth Amendments").
comes to weddings, it can be assumed that a member of the
clergy who objects to gay marriage on moral and religious
grounds could not be compelled to perform the ceremony
without denial of his or her right to the free exercise of
religion. This refusal would be well understood in our
constitutional order as an exercise of religion, an exercise
that gay persons could recognize and accept without serious
diminishment to their own dignity and worth. Yet if that
exception were not confined, then a long list of persons who
provide goods and services for marriages and weddings might
refuse to do so for gay persons, thus resulting in a
community-wide stigma inconsistent with the history and
dynamics of civil rights laws that ensure equal access to
goods, services, and public accommodations.
unexceptional that Colorado law can protect gay persons, just
as it can protect other classes of individuals, in acquiring
whatever products and services they choose on the same terms
and conditions as are offered to other members of the public.
And there are no doubt innumerable goods and services that no
one could argue implicate the First Amendment. Petitioners
conceded, moreover, that if a baker refused to sell any goods
or any cakes for gay weddings, that would be a different
matter and the State would have a strong case under this
Court's precedents that this would be a denial of goods
and services that went beyond any protected rights of a baker
who offers goods and services to the general public and is
subject to a neutrally applied and generally applicable
public accommodations law. See Tr. of Oral Arg. 4-7, 10.
claims, however, that a narrower issue is presented. He
argues that he had to use his artistic skills to make an
expressive statement, a wedding endorsement in his own voice
and of his own creation. As Phillips would see the case, this
contention has a significant First Amendment speech component
and implicates his deep and sincere religious beliefs. In
this context the baker likely found it difficult to find a
line where the customers' rights to goods and services
became a demand for him to ...