Constitution Daily

Smart conversation from the National Constitution Center

A limited start on gay couples’ marital rights

June 4, 2018 by Lyle Denniston


Three years after finding a constitutional right for gay and lesbian couples to get married, the Supreme Court chose on Monday to take a cautious path in spelling out how much protection their marital choice will get from government. 

In a 7-2 ruling in a high-profile wedding cake case from Colorado, the Justices in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission chose to treat it as confined to its special facts, and did little to clarify how the future cases it expected to come along would actually turn out. 

Even so, this first effort at elaborating the rights at issue did have a clear winner: Jack Phillips, the Lakewood, Colo., bakery operator who refused for religious reasons to bake a cake for two gay customers’ planned wedding reception.  His religious rights, the Court majority concluded, had been violated by state civil rights officials because they treated his faith with evident hostility in ordering him to obey state civil rights law.

The Court wiped out a state order compelling Phillips to change his business so as to treat all customers alike when they come to his shop for ceremonial baked goods.  Whether any future action against him for his refusal six years ago might now come is unclear at this point.

Whether another baker in the state, or elsewhere, might win a similar case, however, was far from obvious because of the limited scope and that reality of this specific decision as a plain compromise between choosing up sides.

The public must now await the development of the next case, or cases, to see if the Justices will elaborate further or will, instead, leave the next exploration to lower courts based upon the few generalizations of law that did emerge in Monday’s main opinion, written by the Court’s most ardent defender of gay rights – Justice Anthony M. Kennedy.

The Court’s next opportunity to say something may come this month.  The Justices have been holding a case from Washington State involving a floral shop owner who refused for religious reasons to create a flower arrangement for a same-sex wedding – a refusal that was found to violate that state’s civil rights law.  That case will now be taken up, for a decision on whether to grant review or to return it to state court to apply Monday’s decision.

Monday’s ruling broke no new ground in reiterating that the religious views of a person or a business operator cannot routinely be used as an excuse for violating official laws against discrimination.  The opinion stressed, but not for the first time, that this principle applies fully when such religious objections are used as a defense to charges of bias against gay or lesbian persons.

The decision similarly did not appear to create any broader obligation of government tolerance for religious views when those run counter to laws or official policies.  The majority appeared to have had little difficulty in finding open hostility among members of the state Civil Rights Commission to baker Phillips’ religious views.   The opinion conceded that such evidence might not be present in future cases.

Citing its own prior opinions on the question of religious tolerance, the Court said that courts are to judge whether government action in response to religious objections had been neutral as the Constitution requires, and they are to make that assessment after considering the historical background of the government action, the specific series of events that had led the government to act, and the history of how that action had been judged during internal reviews by government agencies or officials. 

The Kennedy opinion emphasized that it is not up to state officials, in taking initial actions or in reviewing actions by other officials, to judge for themselves whether the individual who had voiced religious objections had been sincerely offended.  But the opinion did not say what specific kinds of religious claims would have to be accepted on their face.

For example, it did not specifically endorse the Colorado baker’s claim that the way he designed wedding cakes was an expression of his religious views.  It did appear that, whatever the specifics of his religious faith were, the Justices were satisfied that the state civil rights commission had treated them with hostility.   The Court did not rule at all on his separate claim that he was a cake artist whose creations were a form of free speech protected by the First Amendment from government coercion.

Justice Kennedy wrote: “It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate.  On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the [First Amendment’s] Free Exercise Clause requires.”

A person or business operator in Phillips’ situation, the decision specified, is entitled to a neutral decisionmaker in government.”

While the main thrust of the Kennedy opinion was its concern with the perceived lack of neutrality, the opinion also left no doubt that states remain entirely free to apply their civil rights laws to protection against discrimination based on sexual orientation, and that gay and lesbian couples must not be stigmatized when they enter the marketplace to purchase goods or services that are related to their marital choice.

Typically for a Kennedy opinion in a gay rights case, Monday’s main opinion contained soaring phrases of affirmation of gay peoples’ identities and choices.  “Our society,” he wrote, “has come to the recognition that gay persons 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.”

And, it added, while religious objections to gay rights must also be given some respect, “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” – the kind of law that was at issue in the Colorado case.

Justice Kennedy’s opinion sought to put a specific emphasis on the narrowness he had intended to give to the outcome.  “The outcome of cases likes this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

The Kennedy opinion had the full support of five other Justices – Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan and Neil M. Gorsuch.  Justice Clarence Thomas joined in the result on Phillips’ religious claim, but wrote separately that he also would have ruled in Phillips’ favor on a claim that his free-speech rights had also been violated.  Justice Gorsuch shared Thomas’ views, but also wrote a separate opinion supported by Alito seeking to answer the two dissenting Justices.  Justice Kagan, joined by Justice Breyer, wrote separately to respond to some of Gorsuch’s views.

Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, wrote the dissenting opinion, arguing that they had found no evidence of the religious hostility that the majority had found.  They would have upheld the state civil rights order against Phillips in this case.   Their opinion did note, however, that they found much in the Kennedy opinion with which they agreed.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


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