In a much-anticipated ruling, the Supreme Court decided that Colorado’s civil-rights commission violated the constitutional rights of Jack Phillips by fining him for declining to bake a cake for a same-sex wedding. Seven justices agreed on this point, but the majority narrowly circumscribed its decision, which turned in part on the manifest anti-Christian bigotry expressed by members of the Colorado commission—thus making clear that the court might hold differently in related cases. Robert P. George explains:
Has the court discovered a constitutional right of business owners and service providers to discriminate on religious grounds against homosexuals or people in same-sex relationships? No. Not a single member of the court drew any such conclusion. Nor did it resolve the bigger question that this case raised: what does the Constitution require when such prohibitions on discrimination conflict with business owners’ religiously informed dictates of conscience?
This much, however, is clear: business owners and others have no obligation under the Constitution, nor can one be imposed by statute, to confine their religion to the private domain. On the contrary, they have the constitutional right to proclaim and to act on their religious beliefs in the public domain, including in the domain of commerce. If you are a Christian (or Jewish, or Muslim, or Hindu) business owner, you may run your business according to your religious principles, subject to legal regulations that are neutral (that is, not rooted in antipathy to your religious beliefs or those of your fellow citizens) and general in their applicability (that is, they apply to everyone equally).
But much remains unresolved. . . . Would the fining of Phillips have been acceptable based purely on a judgment that his refusal to cater same-sex celebrations constituted discrimination based on sexual orientation, and not on the basis of antipathy to Phillips’s beliefs? In a concurring opinion, Justice Elena Kagan, joined by Justice Stephen Breyer, seems to suppose so. If she’s right, the message to state officials could be taken to be: “Look, guys, of course, you can punish the Christian baker. But just remember not to state your own moral or religious reasons or reveal your antipathy to the target business owner’s moral or religious reasons on the record.”
Justice Neil Gorsuch, in a concurrence joined by Justice Samuel Alito, challenged the Kagan reading of the ruling, noting that the commission had demonstrated its unconstitutional lack of neutrality not merely by the improvident words of some of its members but, even more decisively, by ruling in other cases in favor of bakers who refused to bake cakes for religious people who requested them specifically as statements of opposition to homosexual conduct or same-sex partnerships. If Phillips were guilty of discrimination based on sexual orientation, then surely these bakers were no less guilty of discrimination based on religion—another type of discrimination expressly forbidden by the Colorado law.
It is only a matter of time, concludes George, before the court will be forced to make a decision on some of these outstanding questions.