Masterpiece Cakeshop’s Failure to Establish Legal Precedent Allows Discrimination Against the LGBTQI

Masterpiece Cakeshop LTD v. Colorado Civil Rights Commission was a 2012 case from Lakewood, Colorado that pits First Amendment rights to speech and religion against anti-discrimination legislation. This case originates with a baker, Jack Phillips, who refused to create a wedding cake for a gay couple. Phillips told the couple that he did not create wedding cakes for same-sex couples because of his religious opposition to same-sex marriage and because Colorado, at the time, did not recognize same-sex marriages. He also claimed that by creating a wedding cake, he would be using his artistic skills to create speech that endorsed same-sex wedding marriage. The gay couple subsequently filed a civil rights complaint with the Colorado Civil Rights Commission pursuant to the Colorado Anti-Discrimination Act. This state law prevents businesses engaged in sales to the public “from refusing services [due to] characteristics like race, religion, or sexual orientation.”[1] Although Phillips claimed that he was protected by the First Amendment’s Free Speech and Free Exercise Clauses, the Commission found that Phillips had violated the act by discriminating against the couple for their sexual orientations.[2]

Phillips appealed the Colorado state court’s decision to the Supreme Court. Consequently, in a highly anticipated decision on June 4th, the Supreme Court ruled in favor of Jack Phillips. Nonetheless, this was a narrow ruling because it did not address the central question of whether the Colorado Civil Rights Commission violated Phillips’ First Amendment rights. Rather, the Supreme Court decision addressed how the case was handled; it ruled that the original decision was illegitimate because the Commission discriminated against Phillips’ religious beliefs. The decision holds that Phillips was “entitled to neutral and respectful consideration of his claims” of religious opposition to same-sex marriage.[3] However, “that consideration was compromised” by the Commission’s antagonism towards Phillip’s religious beliefs.[4] For example, the Commission displayed “elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection” by “disparag[ing] Phillips’ faith as despicable and characteriz[ing] it as merely rhetorical.”[5] The Commission proceeded to “compare his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.”[6] Thus, the Supreme Court ruled in favor of Phillips merely on procedural grounds, and failed to set a precedent with respect to the case’s central question of the conflict between First Amendment rights and anti-discrimination laws.

What does this decision mean for the conflict between anti-discrimination legislation and First Amendment rights? The court’s decision claims that anti-discrimination laws “can protect gay persons, just as it can protect other classes of individuals.”[7] In Justice Kennedy’s opinion, he states that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth”[8]. This is because the “exercise of their freedom on terms equal to others must be given great weight and respect by courts.”[9] Thus, the court is stating members of the LGTQIA+ community should be protected individuals. For example, while religious and philosophical objections are protected, they “do not allow business owners and other actors in the economy…to deny protected persons equal access to goods and services.”[10] This is evident with previous Supreme Court Cases, like Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. and Newman v. Piggy Park Enterprises, Inc., that dealt with discrimination against minorities in general in businesses. However, the Supreme Court decision also states that laws such as the Colorado Anti-Discrimination Act must be “applied in a manner that is neutral toward religion.”[11] This affirms that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”[12] Thus, rather than deciding on how to handle conflict between First Amendment rights and anti-discrimination laws, Justice Kennedy, in his opinion, explained the court’s narrow opinion that sided with Phillips due to the state’s obligation to provide Phillips with religious neutrality. In other words, the decision on how to handle the conflict between First Amendment rights and anti-discrimination legislation is left to be decided in future court decisions.

This failure to determine how to balance First Amendment rights and anti-discrimination legislation has left the LGBTQIA+ community vulnerable to discrimination. By focusing on how the case was handled, rather than the debate on First Amendment rights, the Supreme Court’s ruling signifies a dangerous complacency towards discrimination against LGBTQIA+ people. Since Masterpiece v Colorado, anti-LGBTQIA+ legislation has been passed that, if implemented, would allow adoption agencies to refuse LGBTQIA+ couples or prohibit LGBTQIA+ youth from joining student organizations. As a gay person, the implications of this case are frightening. We live in a country where, in 28 states, individuals can still be fired for being a part of the LGBTQIA+ community.[13] In 38 states, LGBTQIA+ individuals can legally be refused from renting property since federal fair housing laws protect people based on race, color, religion, sex, national origin, but not sexual orientation.[14] One-third of President Trump’s judicial nominees have extensive anti-LGBTQIA+ track records.[15] Now is the time for legal precedents to be established so that members of the LGBTQIA+ community do not continue to be discriminated against.

[1] ACLU, Masterpiece Cakeshop v. Colorado Civil Rights Commission, (ACLU June 4, 2018), (visited July 27, 2018).

[2] US Supreme Court, Masterpiece Cakeshop LTD v. Colorado Civil Rights Commission. (US Supreme Court June 22, 2018), online at (visited July 27, 2018).

[3] Ibid.

[4] Idem.

[5] Idem.

[6] Idem.

[7] Idem.

[8] Idem.

[9] Idem.

[10] Idem.

[11] Idem.

[12] Idem.

[13] Silas House, The Masterpiece Decision Isn’t Harmless, (The New York Times, June 5, 2018), online at (visited July 27, 2018).

[14] Ibid.

[15] Lambda Legal, Nearly One-Third of Trump’s Judicial Nominees Have Anti-LGBT Records, Lambda Legal Reveals in New Analysis Documenting Record Speed with Which Trump Is Reshaping the Courts, (Lambda Legal, December 20, 2017) online at (visited July 27, 2018).