Yesterday, the Supreme Court issued its much-awaited opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission—the case of Colorado baker Jack Phillips’ refusal to bake a cake for a same-sex wedding because doing so violated his religious conscience. The hotly debated case is one of a number of recent cases where businesses open to the public—in another case a photographer and in yet another a florist—have refused to provide services at a same-sex wedding, notwithstanding state laws that prohibit businesses from discriminating against customers on the basis of sexual orientation.

The case was pitched as a clash between religious liberty and LGBT rights, the next battle in the so-called culture wars. And it was supposed to answer big questions: When someone’s religious conscience prohibits providing services for a same-sex wedding, which public value wins out? Must religious liberty yield to laws that prohibit discrimination against LGBT customers? Or must anti-discrimination laws carve out an exception for religiously motivated businesses?

But instead of answering these questions, the Supreme Court, in finding in favor of the baker, gave us something quite different. By a margin of 7-2, the Supreme Court struck down the decision of the Colorado Civil Rights Commission (CCRC), which had found Phillips’ liable for refusing to provide his services at a same-sex wedding, because that CCRC decision manifested a “clear and impermissible hostility toward [Phillips’] sincere religious beliefs.” How so? Maybe the most notable reason was statements by one of the CCRC’s commissioners expressing how “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust” and then describing claims like Phillips’ as “one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Comparing Phillips’ claims to the Holocaust made the Supreme Court deeply dubious as to whether the CCRC’s decision could have been reached fairly and neutrally.

The court, however, was also disturbed by what it saw as the inconsistent treatment of Phillips’ claim. The CCRC found in favor of the couple that filed suit against Phillips, but simultaneously rejected the similar claims of another consumer who filed suit against three bakers for refusing to bake a custom cake with decorations that demeaned same-sex marriage (and also incorporated biblical verses stating that such marriages were sinful). Colorado law, however, prohibits businesses from discriminating on the basis of religion and sexual orientation. So, why did Phillips lose when refusing to bake a cake for a same-sex wedding, while the other three bakers won when refusing to bake a cake that expressed a religious message hostile to same-sex marriage? Together, the statements of the commissioner combined with the anomalous treatment of Phillips’s claims led the Supreme Court to conclude that Colorado had failed to live up to the First Amendment’s demands of religious neutrality.

Even though it ducked the big-ticket questions, focusing instead on perceived discrimination, the court’s decision is no small deal. With respect to the law, yesterday’s decision did state clearly that the First Amendment would protect any member of the clergy who, for religious or moral reasons, refused to perform a same-sex marriage. Until now, this conclusion may have been intuitive, but not legally obvious. Why would a law that prohibits businesses from discriminating on the basis of sexual orientation treat a rabbi charging for his officiating services any differently than a baker? And while the court did not provide much in terms of explaining the basis for distinguishing clergy from bakers, the court’s statement provides practical guidance even while lacking theoretical insight.

Second, the court answered another lingering question: How do we know when a law discriminates against religion and thereby violates the First Amendment? This question had previously split the court. For some, most famously Justice Antonin Scalia, you can only prove religious discrimination by looking at the text of the law in question; for others, you can also look to evidence that legislators enacted the law for religiously discriminatory reasons.

This debate over what counts as evidence of discrimination—text versus intent—is no small matter. Most recently, it was front and center in the litigation surrounding the Trump administration’s travel ban for immigrants from majority-Muslim countries. Could courts use the president’s statements either during his campaign or while in office as evidence of religious discrimination? Similarly, in the recent litigation over the refusal of three New Jersey townships to allow the building of an eruv, one of the townships responded to a legal challenge claiming its regulations were motivated by religiously discriminatory intent by submitting a brief that argued “discriminatory intent is legally irrelevant”—and that the court should only consider the text of the contested regulation. Today’s decision largely ends this debate over whether legislative intent matters, clearly stating that “historical background,” and “legislative or administrative history” can all be marshalled to prevent government bodies disguising religiously discriminatory intent in facially neutral language.

Ultimately, the core issue presumed to be at stake in Masterpiece Cakeshop v. CCRC—that is, whether religiously-motivated businesses can refuse to provide their services at a same-sex wedding—will wait for another day. To be sure, that day may not be as far off as you think. Currently, the Supreme Court has the opportunity take on the case of a Washington florist who refused to arrange flowers for a same-sex wedding. This case avoids the issues of discrimination and neutrality that ultimately led the Supreme Court to find in favor of the baker, making it an ideal vehicle for the court to resolve the festering tensions between religious liberty and LGBT rights. For now, though, Wednesday’s decision ensures that whatever the ultimate outcome in such future cases, religious discrimination—by courts, legislatures or any other government agency—is simply something that the First Amendment will not tolerate.





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