Discrimination Case Brief
kijvtraug
311MasterpieceCakeshopSCtOpinion.pdf
138 S.Ct. 1719 (2018)
MASTERPIECE CAKESHOP, LTD., et al., Petitioners
v.
COLORADO CIVIL RIGHTS COMMISSION, et al.
No. 16-111.
Argued December 5, 2017.
Decided June 4, 2018.
Supreme Court of United States.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF COLORADO.
Kristen K. Waggoner, Scottsdale, AZ, for Petitioners.
Noel J. Francisco, Solicitor General, for the United States as amicus curiae, by special leave
of the Court, supporting the petitioners.
Frederick R. Yarger, Denver, CO, for the State Respondent.
David D. Cole, Washington, DC, for the Private Respondents.
David A. Cortman, Rory T, Gray, Alliance Defending Freedom, Lawrenceville, GA, Nicolle H.
Martin, Lakewood, CO, Kristen K. Waggoner, Jeremy D. Tedesco, James A. Campbell,
Jonathan A. Scruggs, Alliance Defending Freedom, Scottsdale, AZ, for Petitioners.
Cynthia H. Coffman, Attorney General, Frederick R. Yarger, Solicitor General, Office of the
Colorado Attorney General, Denver, CO, Vincent E. Morscher, Deputy Attorney General,
Glenn E. Roper, Deputy Solicitor General, Stacy L. Worthington, Senior Assistant Attorney
General, Grant T. Sullivan, Assistant Solicitor General, for Respondent Colorado Civil Rights
Commission.
Mark Silverstein, Sara R. Neel, American Civil Liberties Union Foundation of Colorado, Paula
Greisen, King & Greisen, LLC, Denver, CO, Ria Tabacco Mar, James D. Esseks, Leslie
Cooper, Rachel Wainer Apter, Louise Melling, Rose A. *1723 Saxe, Lee Rowland, American
Civil Liberties Union Foundation, New York, NY, David D. Cole, Amanda W. Shanor, Daniel
Mach, American Civil Liberties Union Foundation, Washington, DC, for Respondents Charlie
Craig and David Mullins.
1723
*1720 Syllabus[*] 1720
Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and operated by Jack Phillips, an
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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.
Held: The Commission's actions in this case violated the Free Exercise Clause. Pp.
1727-1732.
(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 *1721
objections to gay marriage are protected views and in some instances protected forms of
expression. See Obergefell v. Hodges, 576 U.S. ___, ___, 135 S.Ct. 2584, 2594, 192
L.Ed.2d 609. 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, 133 S.Ct. 2675,
186 L.Ed.2d 808, 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. 1727-1729.
1721
(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
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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. 1728-1731.
(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 *1722
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, 113 S.Ct. 2217, 124 L.Ed.2d 472. 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, 113 S.Ct. 2217. 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, 113 S.Ct. 2217, 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, 113 S.Ct. 2217, 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. 1730-1732.
1722
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370 P.3d 272, reversed.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and BREYER,
ALITO, KAGAN, and GORSUCH, JJ., joined. KAGAN, J., filed a concurring opinion, in which
BREYER, J., joined. GORSUCH, J., filed a concurring opinion, in which ALITO, J., joined.
THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which
GORSUCH, J., joined. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J.,
joined.
Justice KENNEDY delivered the opinion of the Court.
In 2012 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 Act.
The 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.
The 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.
The 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.
One of 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.
The 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
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are just three examples of possibilities that seem all but endless.
Whatever 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 *1724 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 Constitution
requires.
1724
Given 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.
I
A
Masterpiece 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 other events.
Jack 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.
Phillips 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 envisioned.
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Phillips 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.
The 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).
B
For most of its history, Colorado has prohibited discrimination in places of public *1725
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.
1725
Today, 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).
The Act 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.
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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.
C
Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips
in September 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 43.
The 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 *1726 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.
1726
The 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
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Pet. for Cert. 68a-72a.
Phillips 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.
Phillips 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, 110 S.Ct. 1595, 108 L.Ed.2d 876 (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, 110 S.Ct. 1595; 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 claims.
The 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.
Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission's legal
determinations and remedial *1727 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,
110 S.Ct. 1595, 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.
1727
Phillips sought review here, and this Court granted certiorari. 582 U.S. ___, 137 S.Ct. 2290,
198 L.Ed.2d 723 (2017). He now renews his claims under the Free Speech and Free
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Exercise Clauses of the First Amendment.
II
A
Our 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. ___, 135 S.Ct. 2584, 192 L.Ed.2d 609
(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 ___, 135 S.Ct., at 2607. 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. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n. 5,
88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam); see also Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572, 115 S.Ct. 2338, 132 L.Ed.2d
487 (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").
When it 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.
*1728 It is 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
1728
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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.
Phillips 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 exercise the right of his own personal expression for
their message, a message he could not express in a way consistent with his religious beliefs.
Phillips' dilemma was particularly understandable given the background of legal principles
and administration of the law in Colorado at that time. His decision and his actions leading to
the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize
the validity of gay marriages performed in its own State. See Colo. Const., Art. II, § 31 (2012);
370 P.3d, at 277. At the time of the events in question, this Court had not issued its decisions
either in United States v. Windsor, 570 U.S. 744, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), or
Obergefell. Since the State itself did not allow those marriages to be performed in Colorado,
there is some force to the argument that the baker was not unreasonable in deeming it lawful
to decline to take an action that he understood to be an expression of support for their validity
when that expression was contrary to his sincerely held religious beliefs, at least insofar as
his refusal was limited to refusing to create and express a message in support of gay
marriage, even one planned to take place in another State.
At the time, state law also afforded storekeepers some latitude to decline to create specific
messages the storekeeper considered offensive. Indeed, while enforcement proceedings
against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this
proposition in cases involving other bakers' creation of cakes, concluding on at least three
occasions that a baker acted lawfully in declining to create cakes with decorations that
demeaned gay persons or gay marriages. See Jack v. Gateaux, Ltd., Charge No.
P20140071X (Mar. 24, 2015); Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X
(Mar. 24, 2015); Jack v. Azucar Bakery, Charge No. P20140069X (Mar. 24, 2015).
There were, to be sure, responses to these arguments that the State could make when it
contended for a different result in seeking the enforcement of its generally applicable state
regulations of businesses that serve the public. And any decision in favor of the baker would
have to be sufficiently constrained, lest all purveyors of goods and services who object to gay
marriages for moral and religious reasons in *1729 effect be allowed to put up signs saying
"no goods or services will be sold if they will be used for gay marriages," something that
would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the
neutral and respectful consideration of his claims in all the circumstances of the case.
1729
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B
The neutral and respectful consideration to which Phillips was entitled was compromised
here, however. The Civil Rights Commission's treatment of his case has some elements of a
clear and impermissible hostility toward the sincere religious beliefs that motivated his
objection.
That hostility surfaced at the Commission's formal, public hearings, as shown by the record.
On May 30, 2014, the seven-member Commission convened publicly to consider Phillips'
case. At several points during its meeting, commissioners endorsed the view that religious
beliefs cannot legitimately be carried into the public sphere or commercial domain, implying
that religious beliefs and persons are less than fully welcome in Colorado's business
community. One commissioner suggested that Phillips can believe "what he wants to
believe," but cannot act on his religious beliefs "if he decides to do business in the state." Tr.
23. A few moments later, the commissioner restated the same position: "[I]f a businessman
wants to do business in the state and he's got an issue with the — the law's impacting his
personal belief system, he needs to look at being able to compromise." Id., at 30. Standing
alone, these statements are susceptible of different interpretations. On the one hand, they
might mean simply that a business cannot refuse to provide services based on sexual
orientation, regardless of the proprietor's personal views. On the other hand, they might be
seen as inappropriate and dismissive comments showing lack of due consideration for
Phillips' free exercise rights and the dilemma he faced. In view of the comments that followed,
the latter seems the more likely.
On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and
on the record. On this occasion another commissioner made specific reference to the
previous meeting's discussion but said far more to disparage Phillips' beliefs. The
commissioner stated:
"I would also like to reiterate what we said in the hearing or the last meeting.
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, whether it be — I mean, we — we can list hundreds of situations
where freedom of religion has been used to justify discrimination. And to me it
is one of the most despicable pieces of rhetoric that people can use to — to
use their religion to hurt others." Tr. 11-12.
To describe a man's faith as "one of the most despicable pieces of rhetoric that people can
use" is to disparage his religion in at least two distinct ways: by describing it as despicable,
and also by characterizing it as merely rhetorical — something insubstantial and even
insincere. The commissioner even went so far as to compare Phillips' invocation of his
sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is
inappropriate for a Commission charged with the solemn responsibility of fair and neutral
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enforcement of Colorado's antidiscrimination law — a law that protects against discrimination
on the basis of religion as well as sexual orientation.
The record shows no objection to these comments from other commissioners. And the later
state-court ruling reviewing the Commission's decision did not mention *1730 those
comments, much less express concern with their content. Nor were the comments by the
commissioners disavowed in the briefs filed in this Court. For these reasons, the Court
cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality
of the Commission's adjudication of Phillips' case. Members of the Court have disagreed on
the question whether statements made by lawmakers may properly be taken into account in
determining whether a law intentionally discriminates on the basis of religion. See Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-542, 113 S.Ct. 2217, 124 L.Ed.2d
472 (1993); id., at 558, 113 S.Ct. 2217 (Scalia, J., concurring in part and concurring in
judgment). In this case, however, the remarks were made in a very different context — by an
adjudicatory body deciding a particular case.
1730
Another indication of hostility is the difference in treatment between Phillips' case and the
cases of other bakers who objected to a requested cake on the basis of conscience and
prevailed before the Commission.
As noted above, on at least three other occasions the Civil Rights Division considered the
refusal of bakers to create cakes with images that conveyed disapproval of same-sex
marriage, along with religious text. Each time, the Division found that the baker acted lawfully
in refusing service. It made these determinations because, in the words of the Division, the
requested cake included "wording and images [the baker] deemed derogatory," Jack v.
Gateaux, Ltd., Charge No. P20140071X, at 4; featured "language and images [the baker]
deemed hateful," Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or
displayed a message the baker "deemed as discriminatory, Jack v. Azucar Bakery, Charge
No. P20140069X, at 4.
The treatment of the conscience-based objections at issue in these three cases contrasts
with the Commission's treatment of Phillips' objection. The Commission ruled against Phillips
in part on the theory that any message the requested wedding cake would carry would be
attributed to the customer, not to the baker. Yet the Division did not address this point in any
of the other cases with respect to the cakes depicting anti-gay marriage symbolism.
Additionally, the Division found no violation of CADA in the other cases in part because each
bakery was willing to sell other products, including those depicting Christian themes, to the
prospective customers. But the Commission dismissed Phillips' willingness to sell "birthday
cakes, shower cakes, [and] cookies and brownies," App. 152, to gay and lesbian customers
as irrelevant. The treatment of the other cases and Phillips' case could reasonably be
interpreted as being inconsistent as to the question of whether speech is involved, quite
apart from whether the cases should ultimately be distinguished. In short, the Commission's
consideration of Phillips' religious objection did not accord with its treatment of these other
objections.
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Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment
reflected hostility on the part of the Commission toward his beliefs. He argued that the
Commission had treated the other bakers' conscience-based objections as legitimate, but
treated his as illegitimate — thus sitting in judgment of his religious beliefs themselves. The
Court of Appeals addressed the disparity only in passing and relegated its complete analysis
of the issue to a footnote. There, the court stated that "[t]his case is distinguishable from the
Colorado Civil Rights Division's recent findings that [the other bakeries] in Denver did not
discriminate against a Christian patron on the basis of his creed" when they refused to create
the *1731 requested cakes. 370 P.3d, at 282, n. 8. In those cases, the court continued, there
was no impermissible discrimination because "the Division found that the bakeries ...
refuse[d] the patron's request ... because of the offensive nature of the requested message."
Ibid.
1731
A principled rationale for the difference in treatment of these two instances cannot be based
on the government's own assessment of offensiveness. Just as "no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,"
West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943),
it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe
what shall be offensive. See Matal v. Tam, 582 U.S. ___, ___-___, 137 S.Ct. 1744,
1762-1764, 198 L.Ed.2d 366 (2017) (opinion of ALITO, J.). The Colorado court's attempt to
account for the difference in treatment elevates one view of what is offensive over another
and itself sends a signal of official disapproval of Phillips' religious beliefs. The court's
footnote does not, therefore, answer the baker's concern that the State's practice was to
disfavor the religious basis of his objection.
C
For the reasons just described, 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.
In Church of Lukumi Babalu Aye, supra, the Court made clear that the government, if it is to
respect 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. The Free
Exercise Clause bars even "subtle departures from neutrality" on matters of religion. Id., at
534, 113 S.Ct. 2217. Here, that means the Commission was obliged under the Free Exercise
Clause to proceed in a manner neutral toward and tolerant of Phillips' religious beliefs. The
Constitution "commits government itself to religious tolerance, and upon even slight suspicion
that proposals for state intervention stem from animosity to religion or distrust of its practices,
all officials must pause to remember their own high duty to the Constitution and to the rights it
secures." Id., at 547, 113 S.Ct. 2217.
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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,
113 S.Ct. 2217. In view of these factors the record here demonstrates that the Commission's
consideration of Phillips' case was neither tolerant nor respectful of Phillips' religious beliefs.
The Commission gave "every appearance," id., at 545, 113 S.Ct. 2217, of adjudicating
Phillips' religious objection based on a negative normative "evaluation of the particular
justification" for his objection and the religious grounds for it. Id., at 537, 113 S.Ct. 2217. 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 Free Exercise Clause requires.
*1732 While the issues here are difficult to resolve, it must be concluded that 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. The official
expressions of hostility to religion in some of the commissioners' comments — comments that
were not disavowed at the Commission or by the State at any point in the proceedings that
led to affirmance of the order — were inconsistent with what the Free Exercise Clause
requires. The Commission's disparate consideration of Phillips' case compared to the cases
of the other bakers suggests the same. For these reasons, the order must be set aside.
1732
III
The Commission's hostility was inconsistent with the First Amendment's guarantee that our
laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral
decisionmaker who would give full and fair consideration to his religious objection as he
sought to assert it in all of the circumstances in which this case was presented, considered,
and decided. In this case the adjudication concerned a context that may well be different
going forward in the respects noted above. However later cases raising these or similar
concerns are resolved in the future, for these reasons the rulings of the Commission and of
the state court that enforced the Commission's order must be invalidated.
The outcome of cases like 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 judgment of the Colorado Court of Appeals is reversed.
It is so ordered.
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Justice KAGAN, with whom Justice BREYER joins, concurring.
"[I]t is a general rule that [religious and philosophical] 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." Ante, at 1727. But in upholding that principle, state actors cannot
show hostility to religious views; rather, they must give those views "neutral and respectful
consideration." Ante, at 1729. I join the Court's opinion in full because I believe the Colorado
Civil Rights Commission did not satisfy that obligation. I write separately to elaborate on one
of the bases for the Court's holding.
The Court partly relies on the "disparate consideration of Phillips' case compared to the
cases of [three] other bakers" who "objected to a requested cake on the basis of
conscience." Ante, at 1730, 1732. In the latter cases, a customer named William Jack sought
"cakes with images that conveyed disapproval of same-sex marriage, along with religious
text"; the bakers whom he approached refused to make them. Ante, at 1730; see post, at
1749 (GINSBURG, J., dissenting) (further describing the requested cakes). Those bakers
prevailed before the Colorado Civil Rights Division and Commission, while Phillips — who
objected for religious reasons to baking a wedding cake for a same-sex couple — did not.
The Court finds that the legal reasoning of the state agencies differed in significant ways as
between the Jack cases and the Phillips case. See ante, at 1730. And the Court takes
especial *1733 note of the suggestion made by the Colorado Court of Appeals, in comparing
those cases, that the state agencies found the message Jack requested "offensive [in]
nature." Ante, at 1731 (internal quotation marks omitted). As the Court states, a "principled
rationale for the difference in treatment" cannot be "based on the government's own
assessment of offensiveness." Ibid.
1733
What makes the state agencies' consideration yet more disquieting is that a proper basis for
distinguishing the cases was available — in fact, was obvious. The Colorado Anti-
Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny "the
full and equal enjoyment" of goods and services to individuals based on certain
characteristics, including sexual orientation and creed. Colo. Rev. Stat. § 24-34-601(2)(a)
(2017). The three bakers in the Jack cases did not violate that law. Jack requested them to
make a cake (one denigrating gay people and same-sex marriage) that they would not have
made for any customer. In refusing that request, the bakers did not single out Jack because
of his religion, but instead treated him in the same way they would have treated anyone else
— just as CADA requires. By contrast, the same-sex couple in this case requested a wedding
cake that Phillips would have made for an opposite-sex couple. In refusing that request,
Phillips contravened CADA's demand that customers receive "the full and equal enjoyment" of
public accommodations irrespective of their sexual orientation. Ibid. The different outcomes in
the Jack cases and the Phillips case could thus have been justified by a plain reading and
neutral application of Colorado law — untainted by any bias against a religious belief.[*]
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I read the Court's opinion as fully consistent with that view. The Court limits its analysis to the
reasoning of the state agencies (and Court of Appeals) — "quite *1734 apart from whether
the [Phillips and Jack] cases should ultimately be distinguished." Ante, at 1727. And the
Court itself recognizes the principle that would properly account for a difference in result
between those cases. Colorado law, the Court says, "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." Ante, at
1728. For that reason, Colorado can treat a baker who discriminates based on sexual
orientation differently from a baker who does not discriminate on that or any other prohibited
ground. But only, as the Court rightly says, if the State's decisions are not infected by
religious hostility or bias. I accordingly concur.
1734
Justice GORSUCH, with whom Justice ALITO joins, concurring.
In Employment Div., Dept. of Human Resources of Ore. v. Smith, this Court held that a
neutral and generally applicable law will usually survive a constitutional free exercise
challenge. 494 U.S. 872, 878-879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Smith remains
controversial in many quarters. Compare McConnell, The Origins and Historical
Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990), with Hamburger,
A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L.
Rev. 915 (1992). But we know this with certainty: when the government fails to act neutrally
toward the free exercise of religion, it tends to run into trouble. Then the government can
prevail only if it satisfies strict scrutiny, showing that its restrictions on religion both serve a
compelling interest and are narrowly tailored. Church of Lukumi Babalu Aye, Inc. v. Hialeah,
508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993).
Today's decision respects these principles. As the Court explains, the Colorado Civil Rights
Commission failed to act neutrally toward Jack Phillips's religious faith. Maybe most notably,
the Commission allowed three other bakers to refuse a customer's request that would have
required them to violate their secular commitments. Yet it denied the same accommodation to
Mr. Phillips when he refused a customer's request that would have required him to violate his
religious beliefs. Ante, at 1729-1731. As the Court also explains, the only reason the
Commission seemed to supply for its discrimination was that it found Mr. Phillips's religious
beliefs "offensive." Ibid. That kind of judgmental dismissal of a sincerely held religious belief
is, of course, antithetical to the First Amendment and cannot begin to satisfy strict scrutiny.
The Constitution protects not just popular religious exercises from the condemnation of civil
authorities. It protects them all. Because the Court documents each of these points carefully
and thoroughly, I am pleased to join its opinion in full.
The only wrinkle is this. In the face of so much evidence suggesting hostility toward Mr.
Phillips's sincerely held religious beliefs, two of our colleagues have written separately to
suggest that the Commission acted neutrally toward his faith when it treated him differently
from the other bakers — or that it could have easily done so consistent with the First
Amendment. See post, at 1749-1750, and n. 4 (GINSBURG, J., dissenting); ante, at
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1732-1734, and n. (KAGAN, J., concurring). But, respectfully, I do not see how we might
rescue the Commission from its error.
A full view of the facts helps point the way to the problem. Start with William Jack's case. He
approached three bakers *1735 and asked them to prepare cakes with messages
disapproving same-sex marriage on religious grounds. App. 233, 243, 252. All three bakers
refused Mr. Jack's request, stating that they found his request offensive to their secular
convictions. Id., at 231, 241, 250. Mr. Jack responded by filing complaints with the Colorado
Civil Rights Division. Id., at 230, 240, 249. He pointed to Colorado's Anti-Discrimination Act,
which prohibits discrimination against customers in public accommodations because of
religious creed, sexual orientation, or certain other traits. See ibid.; Colo. Rev. Stat. §
24-34-601(2)(a) (2017). Mr. Jack argued that the cakes he sought reflected his religious
beliefs and that the bakers could not refuse to make them just because they happened to
disagree with his beliefs. App. 231, 241, 250. But the Division declined to find a violation,
reasoning that the bakers didn't deny Mr. Jack service because of his religious faith but
because the cakes he sought were offensive to their own moral convictions. Id., at 237, 247,
255-256. As proof, the Division pointed to the fact that the bakers said they treated Mr. Jack
as they would have anyone who requested a cake with similar messages, regardless of their
religion. Id., at 230-231, 240, 249. The Division pointed, as well, to the fact that the bakers
said they were happy to provide religious persons with other cakes expressing other ideas.
Id., at 237, 247, 257. Mr. Jack appealed to the Colorado Civil Rights Commission, but the
Commission summarily denied relief. App. to Pet. for Cert. 326a-331a.
1735
Next, take the undisputed facts of Mr. Phillips's case. Charlie Craig and Dave Mullins
approached Mr. Phillips about creating a cake to celebrate their wedding. App. 168. Mr.
Phillips explained that he could not prepare a cake celebrating a same-sex wedding
consistent with his religious faith. Id., at 168-169. But Mr. Phillips offered to make other baked
goods for the couple, including cakes celebrating other occasions. Ibid. Later, Mr. Phillips
testified without contradiction that he would have refused to create a cake celebrating a
same-sex marriage for any customer, regardless of his or her sexual orientation. Id., at
166-167 ("I will not design and create wedding cakes for a same-sex wedding regardless of
the sexual orientation of the customer"). And the record reveals that Mr. Phillips apparently
refused just such a request from Mr. Craig's mother. Id., at 38-40, 169. (Any suggestion that
Mr. Phillips was willing to make a cake celebrating a same-sex marriage for a heterosexual
customer or was not willing to sell other products to a homosexual customer, then, would
simply mistake the undisputed factual record. See post, at 1749, n. 2 (GINSBURG, J.,
dissenting); ante, at 1732-1734, and n. (KAGAN, J., concurring)). Nonetheless, the
Commission held that Mr. Phillips's conduct violated the Colorado public accommodations
law. App. to Pet. for Cert. 56a-58a.
The facts show that the two cases share all legally salient features. In both cases, the effect
on the customer was the same: bakers refused service to persons who bore a statutorily
protected trait (religious faith or sexual orientation). But in both cases the bakers refused
1736
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service intending only to honor a personal conviction. To be sure, the bakers knew their
conduct promised the effect of leaving a customer in a protected class unserved. But there's
no indication the bakers actually intended to refuse service because of a customer's
protected characteristic. We know this because all of the bakers explained without
contradiction that they would not sell the requested cakes to anyone, while they would sell
other cakes to members of the protected class (as well as to anyone else). *1736 So, for
example, the bakers in the first case would have refused to sell a cake denigrating same-sex
marriage to an atheist customer, just as the baker in the second case would have refused to
sell a cake celebrating same-sex marriage to a heterosexual customer. And the bakers in the
first case were generally happy to sell to persons of faith, just as the baker in the second
case was generally happy to sell to gay persons. In both cases, it was the kind of cake, not
the kind of customer, that mattered to the bakers.
The distinction between intended and knowingly accepted effects is familiar in life and law.
Often the purposeful pursuit of worthy commitments requires us to accept unwanted but
entirely foreseeable side effects: so, for example, choosing to spend time with family means
the foreseeable loss of time for charitable work, just as opting for more time in the office
means knowingly forgoing time at home with loved ones. The law, too, sometimes
distinguishes between intended and foreseeable effects. See, e.g., ALI, Model Penal Code
§§ 1.13, 2.02(2)(a)(i) (1985); 1 W. LaFave, Substantive Criminal Law § 5.2(b), pp. 460-463
(3d ed. 2018). Other times, of course, the law proceeds differently, either conflating intent
and knowledge or presuming intent as a matter of law from a showing of knowledge. See,
e.g., Restatement (Second) of Torts § 8A (1965); Radio Officers v. NLRB, 347 U.S. 17, 45,
74 S.Ct. 323, 98 L.Ed. 455 (1954).
The problem here is that the Commission failed to act neutrally by applying a consistent legal
rule. In Mr. Jack's case, the Commission chose to distinguish carefully between intended and
knowingly accepted effects. Even though the bakers knowingly denied service to someone in
a protected class, the Commission found no violation because the bakers only intended to
distance themselves from "the offensive nature of the requested message." Craig v.
Masterpiece Cakeshop, Inc., 370 P.3d 272, 282, n. 8 (Colo.App.2015); App. 237, 247, 256;
App. to Pet. for Cert. 326a-331a; see also Brief for Respondent Colorado Civil Rights
Commission 52 ("Businesses are entitled to reject orders for any number of reasons,
including because they deem a particular product requested by a customer to be `offensive'").
Yet, in Mr. Phillips's case, the Commission dismissed this very same argument as resting on a
"distinction without a difference." App. to Pet. for Cert. 69a. It concluded instead that an
"intent to disfavor" a protected class of persons should be "readily ... presumed" from the
knowing failure to serve someone who belongs to that class. Id., at 70a. In its judgment, Mr.
Phillips's intentions were "inextricably tied to the sexual orientation of the parties involved"
and essentially "irrational." Ibid.
Nothing in the Commission's opinions suggests any neutral principle to reconcile these
holdings. If Mr. Phillips's objection is "inextricably tied" to a protected class, then the bakers'
1737
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objection in Mr. Jack's case must be "inextricably tied" to one as well. For just as cakes
celebrating same-sex weddings are (usually) requested by persons of a particular sexual
orientation, so too are cakes expressing religious opposition to same-sex weddings (usually)
requested by persons of particular religious faiths. In both cases the bakers' objection would
(usually) result in turning down customers who bear a protected characteristic. In the end, the
Commission's decisions simply reduce to this: it presumed that Mr. Phillip harbored an intent
to discriminate against a protected class in light of the foreseeable effects of his conduct, but
it declined to presume the same intent in Mr. Jack's case even though the effects of the
bakers' conduct were just as foreseeable. Underscoring the double standard, a state
appellate court said that "no *1737 such showing" of actual "animus" — or intent to
discriminate against persons in a protected class — was even required in Mr. Phillips's case.
370 P.3d, at 282.
The Commission cannot have it both ways. The Commission cannot slide up and down the
mens rea scale, picking a mental state standard to suit its tastes depending on its
sympathies. Either actual proof of intent to discriminate on the basis of membership in a
protected class is required (as the Commission held in Mr. Jack's case), or it is sufficient to
"presume" such intent from the knowing failure to serve someone in a protected class (as the
Commission held in Mr. Phillips's case). Perhaps the Commission could have chosen either
course as an initial matter. But the one thing it can't do is apply a more generous legal test to
secular objections than religious ones. See Church of Lukumi Babalu Aye, 508 U.S., at
543-544, 113 S.Ct. 2217. That is anything but the neutral treatment of religion.
The real explanation for the Commission's discrimination soon comes clear, too — and it
does anything but help its cause. This isn't a case where the Commission self-consciously
announced a change in its legal rule in all public accommodation cases. Nor is this a case
where the Commission offered some persuasive reason for its discrimination that might
survive strict scrutiny. Instead, as the Court explains, it appears the Commission wished to
condemn Mr. Phillips for expressing just the kind of "irrational" or "offensive ... message" that
the bakers in the first case refused to endorse. Ante, at 1730-1731. Many may agree with the
Commission and consider Mr. Phillips's religious beliefs irrational or offensive. Some may
believe he misinterprets the teachings of his faith. And, to be sure, this Court has held same-
sex marriage a matter of constitutional right and various States have enacted laws that
preclude discrimination on the basis of sexual orientation. But it is also true that no
bureaucratic judgment condemning a sincerely held religious belief as "irrational" or
"offensive" will ever survive strict scrutiny under the First Amendment. In this country, the
place of secular officials isn't to sit in judgment of religious beliefs, but only to protect their
free exercise. Just as it is the "proudest boast of our free speech jurisprudence" that we
protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence
that we protect religious beliefs that we find offensive. See Matal v. Tam, 582 U.S. ___, ___,
137 S.Ct. 1744, 1764, 198 L.Ed.2d 366 (2017) (plurality opinion) (citing United States v.
Schwimmer, 279 U.S. 644, 655, 49 S.Ct. 448, 73 L.Ed. 889 (1929) (Holmes, J., dissenting)).
Popular religious views are easy enough to defend. It is in protecting unpopular religious
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beliefs that we prove this country's commitment to serving as a refuge for religious freedom.
See Church of Lukumi Babalu Aye, supra, at 547, 113 S.Ct. 2217; Thomas v. Review Bd. of
Indiana Employment Security Div., 450 U.S. 707, 715-716, 101 S.Ct. 1425, 67 L.Ed.2d 624
(1981); Wisconsin v. Yoder, 406 U.S. 205, 223-224, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972);
Cantwell v. Connecticut, 310 U.S. 296, 308-310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).
Nor can any amount of after-the-fact maneuvering by our colleagues save the Commission. It
is no answer, for example, to observe that Mr. Jack requested a cake with text on it while Mr.
Craig and Mr. Mullins sought a cake celebrating their wedding without discussing its
decoration, and then suggest this distinction makes all the difference. See post, at
1749-1750, and n. 4 (GINSBURG, J., dissenting). It is no answer either simply to slide up a
level of generality to redescribe Mr. Phillips's case as involving only a wedding cake *1738
like any other, so the fact that Mr. Phillips would make one for some means he must make
them for all. See ante, at 1732-1734, and n. (KAGAN, J., concurring). These arguments, too,
fail to afford Mr. Phillips's faith neutral respect.
1738
Take the first suggestion first. To suggest that cakes with words convey a message but cakes
without words do not — all in order to excuse the bakers in Mr. Jack's case while penalizing
Mr. Phillips — is irrational. Not even the Commission or court of appeals purported to rely on
that distinction. Imagine Mr. Jack asked only for a cake with a symbolic expression against
same-sex marriage rather than a cake bearing words conveying the same idea. Surely the
Commission would have approved the bakers' intentional wish to avoid participating in that
message too. Nor can anyone reasonably doubt that a wedding cake without words conveys
a message. Words or not and whatever the exact design, it celebrates a wedding, and if the
wedding cake is made for a same-sex couple it celebrates a same-sex wedding. See 370
P.3d, at 276 (stating that Mr. Craig and Mr. Mullins "requested that Phillips design and create
a cake to celebrate their same-sex wedding") (emphasis added). Like "an emblem or flag," a
cake for a same-sex wedding is a symbol that serves as "a short cut from mind to mind,"
signifying approval of a specific "system, idea, [or] institution." West Virginia Bd. of Ed. v.
Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). It is precisely that
approval that Mr. Phillips intended to withhold in keeping with his religious faith. The
Commission denied Mr. Phillips that choice, even as it afforded the bakers in Mr. Jack's case
the choice to refuse to advance a message they deemed offensive to their secular
commitments. That is not neutral.
Nor would it be proper for this or any court to suggest that a person must be forced to write
words rather than create a symbol before his religious faith is implicated. Civil authorities,
whether "high or petty," bear no license to declare what is or should be "orthodox" when it
comes to religious beliefs, id., at 642, 63 S.Ct. 1178, or whether an adherent has "correctly
perceived" the commands of his religion, Thomas, supra, at 716, 101 S.Ct. 1425. Instead, it is
our job to look beyond the formality of written words and afford legal protection to any sincere
act of faith. See generally Hurley v. Irish-American Gay, Lesbian and Bisexual Group of
Boston, Inc., 515 U.S. 557, 569, 115 S.Ct. 2338. 132 L.Ed.2d 487 (1995) ("[T]he Constitution
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looks beyond written or spoken words as mediums of expression," which are "not a condition
of constitutional protection").
The second suggestion fares no better. Suggesting that this case is only about "wedding
cakes" — and not a wedding cake celebrating a same-sex wedding — actually points up the
problem. At its most general level, the cake at issue in Mr. Phillips's case was just a mixture of
flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of
Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule:
describing the cake by its ingredients is too general; understanding it as celebrating a same-
sex wedding is too specific; but regarding it as a generic wedding cake is just right. The
problem is, the Commission didn't play with the level of generality in Mr. Jack's case in this
way. It didn't declare, for example, that because the cakes Mr. Jack requested were just
cakes about weddings generally, and all such cakes were the same, the bakers had to
produce them. Instead, the Commission accepted the bakers' view that the specific cakes Mr.
Jack requested conveyed a message offensive to their convictions and allowed *1739 them
to refuse service. Having done that there, it must do the same here.
1739
Any other conclusion would invite civil authorities to gerrymander their inquiries based on the
parties they prefer. Why calibrate the level of generality in Mr. Phillips's case at "wedding
cakes" exactly — and not at, say, "cakes" more generally or "cakes that convey a message
regarding same-sex marriage" more specifically? If "cakes" were the relevant level of
generality, the Commission would have to order the bakers to make Mr. Jack's requested
cakes just as it ordered Mr. Phillips to make the requested cake in his case. Conversely, if
"cakes that convey a message regarding same-sex marriage" were the relevant level of
generality, the Commission would have to respect Mr. Phillips's refusal to make the requested
cake just as it respected the bakers' refusal to make the cakes Mr. Jack requested. In short,
when the same level of generality is applied to both cases, it is no surprise that the bakers
have to be treated the same. Only by adjusting the dials just right — fine-tuning the level of
generality up or down for each case based solely on the identity of the parties and the
substance of their views — can you engineer the Commission's outcome, handing a win to
Mr. Jack's bakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is
improper. Neither the Commission nor this Court may apply a more specific level of generality
in Mr. Jack's case (a cake that conveys a message regarding same-sex marriage) while
applying a higher level of generality in Mr. Phillips's case (a cake that conveys no message
regarding same-sex marriage). Of course, under Smith a vendor cannot escape a public
accommodations law just because his religion frowns on it. But for any law to comply with the
First Amendment and Smith, it must be applied in a manner that treats religion with neutral
respect. That means the government must apply the same level of generality across cases —
and that did not happen here.
There is another problem with sliding up the generality scale: it risks denying constitutional
protection to religious beliefs that draw distinctions more specific than the government's
preferred level of description. To some, all wedding cakes may appear indistinguishable. But
1740
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to Mr. Phillips that is not the case — his faith teaches him otherwise. And his religious beliefs
are entitled to no less respectful treatment than the bakers' secular beliefs in Mr. Jack's case.
This Court has explained these same points "[r]epeatedly and in many different contexts"
over many years. Smith, 494 U.S. at 887, 110 S.Ct. 1595. For example, in Thomas a faithful
Jehovah's Witness and steel mill worker agreed to help manufacture sheet steel he knew
might find its way into armaments, but he was unwilling to work on a fabrication line
producing tank turrets. 450 U.S., at 711, 101 S.Ct. 1425. Of course, the line Mr. Thomas
drew wasn't the same many others would draw and it wasn't even the same line many other
members of the same faith would draw. Even so, the Court didn't try to suggest that making
steel is just making steel. Or that to offend his religion the steel needed to be of a particular
kind or shape. Instead, it recognized that Mr. Thomas alone was entitled to define the nature
of his religious commitments — and that those commitments, as defined by the faithful
adherent, not a bureaucrat or judge, are entitled to protection under the First Amendment. Id.,
at 714-716, 101 S.Ct. 1425; see also United States v. Lee, 455 U.S. 252, 254-255, 102 S.Ct.
1051, 71 L.Ed.2d 127 (1982); Smith, supra, at 887, 110 S.Ct. 1595 (collecting authorities). It
is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding
*1740 cake is just like any other — without regard to the religious significance his faith may
attach to it — than it would be for the Court to suggest that for all persons sacramental bread
is just bread or a kippah is just a cap.
Only one way forward now remains. Having failed to afford Mr. Phillips's religious objections
neutral consideration and without any compelling reason for its failure, the Commission must
afford him the same result it afforded the bakers in Mr. Jack's case. The Court recognizes this
by reversing the judgment below and holding that the Commission's order "must be set
aside." Ante, at 1732. Maybe in some future rulemaking or case the Commission could adopt
a new "knowing" standard for all refusals of service and offer neutral reasons for doing so.
But, as the Court observes, "[h]owever later cases raising these or similar concerns are
resolved in the future, ... the rulings of the Commission and of the state court that enforced
the Commission's order" in this case "must be invalidated." Ibid. Mr. Phillips has conclusively
proven a First Amendment violation and, after almost six years facing unlawful civil charges,
he is entitled to judgment.
Justice THOMAS, with whom Justice GORSUCH joins, concurring in part and concurring in
the judgment.
I agree that the Colorado Civil Rights Commission (Commission) violated Jack Phillips' right
to freely exercise his religion. As Justice GORSUCH explains, the Commission treated
Phillips' case differently from a similar case involving three other bakers, for reasons that can
only be explained by hostility toward Phillips' religion. See ante, at 1734-1737 (concurring
opinion). The Court agrees that the Commission treated Phillips differently, and it points out
that some of the Commissioners made comments disparaging Phillips' religion. See ante, at
1728-1731. Although the Commissioners' comments are certainly disturbing, the
discriminatory application of Colorado's public-accommodations law is enough on its own to
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violate Phillips' rights. To the extent the Court agrees, I join its opinion.
While Phillips rightly prevails on his free-exercise claim, I write separately to address his free-
speech claim. The Court does not address this claim because it has some uncertainties
about the record. See ante, at 1723-1724. Specifically, the parties dispute whether Phillips
refused to create a custom wedding cake for the individual respondents, or whether he
refused to sell them any wedding cake (including a premade one). But the Colorado Court of
Appeals resolved this factual dispute in Phillips' favor. The court described his conduct as a
refusal to "design and create a cake to celebrate [a] same-sex wedding." Craig v.
Masterpiece Cakeshop, Inc., 370 P.3d 272, 276 (2015); see also id., at 286 ("designing and
selling a wedding cake"); id., at 283 ("refusing to create a wedding cake"). And it noted that
the Commission's order required Phillips to sell "`any product [he] would sell to heterosexual
couples,'" including custom wedding cakes. Id., at 286 (emphasis added).
Even after describing his conduct this way, the Court of Appeals concluded that Phillips'
conduct was not expressive and was not protected speech. It reasoned that an outside
observer would think that Phillips was merely complying with Colorado's public-
accommodations law, not expressing a message, and that Phillips could post a disclaimer to
that effect. This reasoning flouts bedrock principles of our free-speech jurisprudence and
would justify virtually any law that compels individuals to speak. It should not pass without
comment.
*1741 I1741
The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits
state laws that abridge the "freedom of speech." When interpreting this command, this Court
has distinguished between regulations of speech and regulations of conduct. The latter
generally do not abridge the freedom of speech, even if they impose "incidental burdens" on
expression. Sorrell v. IMS Health Inc., 564 U.S. 552, 567, 131 S.Ct. 2653, 180 L.Ed.2d 544
(2011). As the Court explains today, public-accommodations laws usually regulate conduct.
Ante, at 1727-1728 (citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of
Boston, Inc., 515 U.S. 557, 572, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995)). "[A]s a general
matter," public-accommodations laws do not "target speech" but instead prohibit "the act of
discriminating against individuals in the provision of publicly available goods, privileges, and
services." Id., at 572, 115 S.Ct. 2338 (emphasis added).
Although public-accommodations laws generally regulate conduct, particular applications of
them can burden protected speech. When a public-accommodations law "ha[s] the effect of
declaring ... speech itself to be the public accommodation," the First Amendment applies with
full force. Id., at 573, 115 S.Ct. 2338; accord, Boy Scouts of America v. Dale, 530 U.S. 640,
657-659, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). In Hurley, for example, a Massachusetts
public-accommodations law prohibited "`any distinction, discrimination or restriction on
account of ... sexual orientation ... relative to the admission of any person to, or treatment in
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any place of public accommodation.'" 515 U.S., at 561, 115 S.Ct. 2338 (quoting Mass. Gen.
Laws § 272:98 (1992); ellipsis in original). When this law required the sponsor of a St.
Patrick's Day parade to include a parade unit of gay, lesbian, and bisexual Irish-Americans,
the Court unanimously held that the law violated the sponsor's right to free speech. Parades
are "a form of expression," this Court explained, and the application of the public-
accommodations law "alter[ed] the expressive content" of the parade by forcing the sponsor
to add a new unit. 515 U.S., at 568, 572-573, 115 S.Ct. 2338. The addition of that unit
compelled the organizer to "bear witness to the fact that some Irish are gay, lesbian, or
bisexual"; "suggest ... that people of their sexual orientation have as much claim to
unqualified social acceptance as heterosexuals"; and imply that their participation "merits
celebration." Id., at 574, 115 S.Ct. 2338. While this Court acknowledged that the unit's
exclusion might have been "misguided, or even hurtful," ibid., it rejected the notion that
governments can mandate "thoughts and statements acceptable to some groups or, indeed,
all people" as the "antithesis" of free speech, id., at 579, 115 S.Ct. 2338; accord, Dale, supra,
at 660-661, 120 S.Ct. 2446.
The parade in Hurley was an example of what this Court has termed "expressive conduct."
See 515 U.S., at 568-569, 115 S.Ct. 2338. This Court has long held that "the Constitution
looks beyond written or spoken words as mediums of expression," id., at 569, 115 S.Ct.
2338, and that "[s]ymbolism is a primitive but effective way of communicating ideas," West
Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).
Thus, a person's "conduct may be `sufficiently imbued with elements of communication to fall
within the scope of the First and Fourteenth Amendments.'" Texas v. Johnson, 491 U.S. 397,
404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Applying this principle, the Court has
recognized a wide array of conduct that can qualify as expressive, including nude dancing,
burning the American flag, flying an upside-down American *1742 flag with a taped-on peace
sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing
to salute the American flag, and flying a plain red flag.[1]
1742
Of course, conduct does not qualify as protected speech simply because "the person
engaging in [it] intends thereby to express an idea." United States v. O'Brien, 391 U.S. 367,
376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). To determine whether conduct is sufficiently
expressive, the Court asks whether it was "intended to be communicative" and, "in context,
would reasonably be understood by the viewer to be communicative." Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). But a
"`particularized message'" is not required, or else the freedom of speech "would never reach
the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or
Jabberwocky verse of Lewis Carroll." Hurley, 515 U.S., at 569, 115 S.Ct. 2338.
Once a court concludes that conduct is expressive, the Constitution limits the government's
authority to restrict or compel it. "[O]ne important manifestation of the principle of free speech
is that one who chooses to speak may also decide `what not to say'" and "tailor" the content
of his message as he sees fit. Id., at 573, 115 S.Ct. 2338 (quoting Pacific Gas & Elec. Co. v.
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Public Util. Comm'n of Cal., 475 U.S. 1, 16, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality
opinion)). This rule "applies not only to expressions of value, opinion, or endorsement, but
equally to statements of fact the speaker would rather avoid." Hurley, supra, at 573, 115 S.Ct.
2338. And it "makes no difference" whether the government is regulating the "creati[on],
distributi[on], or consum[ption]" of the speech. Brown v. Entertainment Merchants Assn., 564
U.S. 786, 792, n. 1, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011).
II
A
The conduct that the Colorado Court of Appeals ascribed to Phillips — creating and
designing custom wedding cakes — is expressive. Phillips considers himself an artist. The
logo for Masterpiece Cakeshop is an artist's paint palette with a paintbrush and baker's
whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a
canvas. Phillips takes exceptional care with each cake that he creates — sketching the
design out on paper, choosing the color scheme, creating the frosting and decorations,
baking and sculpting the cake, decorating it, and delivering it to the wedding. Examples of his
creations can be seen on Masterpiece's website. See http://masterpiececakes.com/wedding-
cakes (as last visited June 1, 2018).
Phillips is an active participant in the wedding celebration. He sits down with each couple for
a consultation before he creates their custom wedding cake. He discusses their preferences,
their personalities, and the details of their wedding to *1743 ensure that each cake reflects
the couple who ordered it. In addition to creating and delivering the cake — a focal point of
the wedding celebration — Phillips sometimes stays and interacts with the guests at the
wedding. And the guests often recognize his creations and seek his bakery out afterward.
Phillips also sees the inherent symbolism in wedding cakes. To him, a wedding cake
inherently communicates that "a wedding has occurred, a marriage has begun, and the
couple should be celebrated." App. 162.
1743
Wedding cakes do, in fact, communicate this message. A tradition from Victorian England that
made its way to America after the Civil War, "[w]edding cakes are so packed with symbolism
that it is hard to know where to begin." M. Krondl, Sweet Invention: A History of Dessert 321
(2011) (Krondl); see also ibid. (explaining the symbolism behind the color, texture, flavor, and
cutting of the cake). If an average person walked into a room and saw a white, multi-tiered
cake, he would immediately know that he had stumbled upon a wedding. The cake is "so
standardised and inevitable a part of getting married that few ever think to question it."
Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 95 (1987).
Almost no wedding, no matter how spartan, is missing the cake. See id., at 98. "A whole
series of events expected in the context of a wedding would be impossible without it: an
essential photograph, the cutting, the toast, and the distribution of both cake and favours at
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the wedding and afterwards." Ibid. Although the cake is eventually eaten, that is not its
primary purpose. See id., at 95 ("It is not unusual to hear people declaring that they do not
like wedding cake, meaning that they do not like to eat it. This includes people who are,
without question, having such cakes for their weddings"); id., at 97 ("Nothing is made of the
eating itself"); Krondl 320-321 (explaining that wedding cakes have long been described as
"inedible"). The cake's purpose is to mark the beginning of a new marriage and to celebrate
the couple.[2]
Accordingly, Phillips' creation of custom wedding cakes is expressive. The use of his artistic
talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly
communicates a message — certainly more so than nude dancing, Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 565-566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), or flying a plain red
flag, Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).[3] By
*1744 forcing Phillips to create custom wedding cakes for same-sex weddings, Colorado's
public-accommodations law "alter[s] the expressive content" of his message. Hurley, 515
U.S., at 572, 115 S.Ct. 2338. The meaning of expressive conduct, this Court has explained,
depends on "the context in which it occur[s]." Johnson, 491 U.S., at 405, 109 S.Ct. 2533.
Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at
the very least, acknowledge that same-sex weddings are "weddings" and suggest that they
should be celebrated — the precise message he believes his faith forbids. The First
Amendment prohibits Colorado from requiring Phillips to "bear witness to [these] fact[s],"
Hurley, 515 U.S., at 574, 115 S.Ct. 2338, or to "affir[m] ... a belief with which [he] disagrees,"
id., at 573, 115 S.Ct. 2338.
1744
B
The Colorado Court of Appeals nevertheless concluded that Phillips' conduct was "not
sufficiently expressive" to be protected from state compulsion. 370 P.3d, at 283. It noted that
a reasonable observer would not view Phillips' conduct as "an endorsement of same-sex
marriage," but rather as mere "compliance" with Colorado's public-accommodations law. Id.,
at 286-287 (citing Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S.
47, 64-65, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (FAIR); Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U.S. 819, 841-842, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995);
PruneYard Shopping Center v. Robins, 447 U.S. 74, 76-78, 100 S.Ct. 2035, 64 L.Ed.2d 741
(1980)). It also emphasized that Masterpiece could "disassociat[e]" itself from same-sex
marriage by posting a "disclaimer" stating that Colorado law "requires it not to discriminate" or
that "the provision of its services does not constitute an endorsement." 370 P.3d, at 288. This
reasoning is badly misguided.
1
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The Colorado Court of Appeals was wrong to conclude that Phillips' conduct was not
expressive because a reasonable observer would think he is merely complying with
Colorado's public-accommodations law. This argument would justify any law that compelled
protected speech. And, this Court has never accepted it. From the beginning, this Court's
compelled-speech precedents have rejected arguments that "would resolve every issue of
power in favor of those in authority." Barnette, 319 U.S., at 636, 63 S.Ct. 1178. Hurley, for
example, held that the application of Massachusetts' public-accommodations law "requir[ed]
[the organizers] to alter the expressive content of their parade." 515 U.S., at 572-573, 115
S.Ct. 2338. It did not hold that reasonable observers would view the organizers as merely
complying with Massachusetts' public-accommodations law.
The decisions that the Colorado Court of Appeals cited for this proposition are far afield. It
cited three decisions where groups objected to being forced to provide a forum for a third
party's speech. See FAIR, supra, at 51, 126 S.Ct. 1297 (law school refused to allow military
recruiters *1745 on campus); Rosenberger, supra, at 822-823, 115 S.Ct. 2510 (public
university refused to provide funds to a religious student paper); PruneYard, supra, at 77,
100 S.Ct. 2035 (shopping center refused to allow individuals to collect signatures on its
property). In those decisions, this Court rejected the argument that requiring the groups to
provide a forum for third-party speech also required them to endorse that speech. See FAIR,
supra, at 63-65, 126 S.Ct. 1297; Rosenberger, supra, at 841-842, 115 S.Ct. 2510;
PruneYard, supra, at 85-88, 100 S.Ct. 2035. But these decisions do not suggest that the
government can force speakers to alter their own message. See Pacific Gas & Elec., 475
U.S., at 12, 106 S.Ct. 903 ("Notably absent from PruneYard was any concern that access...
might affect the shopping center owner's exercise of his own right to speak"); Hurley, supra,
at 580, 115 S.Ct. 2338 (similar).
1745
The Colorado Court of Appeals also noted that Masterpiece is a "for-profit bakery" that
"charges its customers." 370 P.3d, at 287. But this Court has repeatedly rejected the notion
that a speaker's profit motive gives the government a freer hand in compelling speech. See
Pacific Gas & Elec., supra, at 8, 16, 106 S.Ct. 903 (collecting cases); Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761, 96 S.Ct. 1817, 48
L.Ed.2d 346 (1976) (deeming it "beyond serious dispute" that "[s]peech... is protected even
though it is carried in a form that is `sold' for profit"). Further, even assuming that most for-
profit companies prioritize maximizing profits over communicating a message, that is not true
for Masterpiece Cakeshop. Phillips routinely sacrifices profits to ensure that Masterpiece
operates in a way that represents his Christian faith. He is not open on Sundays, he pays his
employees a higher-than-average wage, and he loans them money in times of need. Phillips
also refuses to bake cakes containing alcohol, cakes with racist or homophobic messages,
cakes criticizing God, and cakes celebrating Halloween — even though Halloween is one of
the most lucrative seasons for bakeries. These efforts to exercise control over the messages
that Masterpiece sends are still more evidence that Phillips' conduct is expressive. See
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256-258, 94 S.Ct. 2831, 41 L.Ed.2d
730 (1974); Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, ___,
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135 S.Ct. 2239, 2251, 192 L.Ed.2d 274 (2015).
2
The Colorado Court of Appeals also erred by suggesting that Phillips could simply post a
disclaimer, disassociating Masterpiece from any support for same-sex marriage. Again, this
argument would justify any law compelling speech. And again, this Court has rejected it. We
have described similar arguments as "beg[ging] the core question." Tornillo, supra, at 256, 94
S.Ct. 2831. Because the government cannot compel speech, it also cannot "require speakers
to affirm in one breath that which they deny in the next." Pacific Gas & Elec., 475 U.S., at 16,
106 S.Ct. 903; see also id., at 15, n. 11, 106 S.Ct. 903 (citing PruneYard, 447 U.S., at 99,
100 S.Ct. 2035 (Powell, J., concurring in part and concurring in judgment)). States cannot put
individuals to the choice of "be[ing] compelled to affirm someone else's belief" or "be[ing]
forced to speak when [they] would prefer to remain silent." Id., at 99, 100 S.Ct. 2035.
III
Because Phillips' conduct (as described by the Colorado Court of Appeals) was expressive,
Colorado's public-accommodations law cannot penalize it unless the law *1746 withstands
strict scrutiny. Although this Court sometimes reviews regulations of expressive conduct
under the more lenient test articulated in O'Brien,[4] that test does not apply unless the
government would have punished the conduct regardless of its expressive component. See,
e.g., Barnes, 501 U.S., at 566-572, 111 S.Ct. 2456 (applying O'Brien to evaluate the
application of a general nudity ban to nude dancing); Clark, 468 U.S., at 293, 104 S.Ct. 3065
(applying O'Brien to evaluate the application of a general camping ban to a demonstration in
the park). Here, however, Colorado would not be punishing Phillips if he refused to create
any custom wedding cakes; it is punishing him because he refuses to create custom wedding
cakes that express approval of same-sex marriage. In cases like this one, our precedents
demand "`the most exacting scrutiny.'" Johnson, 491 U.S., at 412, 109 S.Ct. 2533; accord,
Holder v. Humanitarian Law Project, 561 U.S. 1, 28, 130 S.Ct. 2705, 177 L.Ed.2d 355
(2010).
1746
The Court of Appeals did not address whether Colorado's law survives strict scrutiny, and I
will not do so in the first instance. There is an obvious flaw, however, with one of the asserted
justifications for Colorado's law. According to the individual respondents, Colorado can
compel Phillips' speech to prevent him from "`denigrat[ing] the dignity'" of same-sex couples,
"`assert[ing] [their] inferiority,'" and subjecting them to "`humiliation, frustration, and
embarrassment.'" Brief for Respondents Craig et al. 39 (quoting J.E.B. v. Alabama ex rel. T.
B., 511 U.S. 127, 142, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241, 292, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (Goldberg, J.,
concurring)). These justifications are completely foreign to our free-speech jurisprudence.
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States cannot punish protected speech because some group finds it offensive, hurtful,
stigmatic, unreasonable, or undignified. "If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable." Johnson, supra, at 414, 109
S.Ct. 2533. A contrary rule would allow the government to stamp out virtually any speech at
will. See Morse v. Frederick, 551 U.S. 393, 409, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007)
("After all, much political and religious speech might be perceived as offensive to some"). As
the Court reiterates today, "it is not ... the role of the State or its officials to prescribe what
shall be offensive." Ante, at 1731. "`Indeed, if it is the speaker's opinion that gives offense,
that consequence is a reason for according it constitutional protection.'" Hustler Magazine,
Inc. v. Falwell, 485 U.S. 46, 55, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); accord, Johnson,
supra, at 408-409, 109 S.Ct. 2533. If the only reason a public-accommodations law regulates
speech is "to produce a society free of ... biases" against the protected groups, that purpose
is "decidedly fatal" to the law's constitutionality, "for it amounts to nothing less than a proposal
to limit speech in the service of orthodox expression." Hurley, 515 U.S., at 578-579, 115 S.Ct.
2338; see also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813,
*1747 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) ("Where the designed benefit of a content-
based speech restriction is to shield the sensibilities of listeners, the general rule is that the
right of expression prevails"). "[A] speech burden based on audience reactions is simply
government hostility ... in a different guise." Matal v. Tam, 582 U.S. ___, ___, 137 S.Ct. 1744,
1767, 198 L.Ed.2d 366 (2017) (KENNEDY, J., concurring in part and concurring in judgment).
1747
Consider what Phillips actually said to the individual respondents in this case. After sitting
down with them for a consultation, Phillips told the couple, "`I'll make your birthday cakes,
shower cakes, sell you cookies and brownies, I just don't make cakes for same sex
weddings.'" App. 168. It is hard to see how this statement stigmatizes gays and lesbians more
than blocking them from marching in a city parade, dismissing them from the Boy Scouts, or
subjecting them to signs that say "God Hates Fags" — all of which this Court has deemed
protected by the First Amendment. See Hurley, supra, at 574-575, 115 S.Ct. 2338; Dale, 530
U.S., at 644, 120 S.Ct. 2446; Snyder v. Phelps, 562 U.S. 443, 448, 131 S.Ct. 1207, 179
L.Ed.2d 172 (2011). Moreover, it is also hard to see how Phillips' statement is worse than the
racist, demeaning, and even threatening speech toward blacks that this Court has tolerated
in previous decisions. Concerns about "dignity" and "stigma" did not carry the day when this
Court affirmed the right of white supremacists to burn a 25-foot cross, Virginia v. Black, 538
U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003); conduct a rally on Martin Luther King Jr.'s
birthday, Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S.Ct. 2395, 120
L.Ed.2d 101 (1992); or circulate a film featuring hooded Klan members who were brandishing
weapons and threatening to "`Bury the niggers,'" Brandenburg v. Ohio, 395 U.S. 444, 446, n.
1, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam).
Nor does the fact that this Court has now decided Obergefell v. Hodges, 576 U.S. ___, 135
S.Ct. 2584, 192 L.Ed.2d 609 (2015), somehow diminish Phillips' right to free speech. "It is
one thing ... to conclude that the Constitution protects a right to same-sex marriage; it is
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something else to portray everyone who does not share [that view] as bigoted" and unentitled
to express a different view. Id., at ___, 135 S.Ct., at 2626 (ROBERTS, C.J., dissenting). This
Court is not an authority on matters of conscience, and its decisions can (and often should)
be criticized. The First Amendment gives individuals the right to disagree about the
correctness of Obergefell and the morality of same-sex marriage. Obergefell itself
emphasized that the traditional understanding of marriage "long has been held — and
continues to be held — in good faith by reasonable and sincere people here and throughout
the world." Id., at ___, 135 S.Ct., at 2594 (majority opinion). If Phillips' continued adherence
to that understanding makes him a minority after Obergefell, that is all the more reason to
insist that his speech be protected. See Dale, supra, at 660, 120 S.Ct. 2446 ("[T]he fact that
[the social acceptance of homosexuality] may be embraced and advocated by increasing
numbers of people is all the more reason to protect the First Amendment rights of those who
wish to voice a different view").
* * *
In Obergefell, I warned that the Court's decision would "inevitabl[y] ... come into conflict" with
religious liberty, "as individuals... are confronted with demands to participate in and endorse
civil marriages between same-sex couples." 576 U.S., at ___, 135 S.Ct., at 2638 (dissenting
opinion). This case proves that the conflict has *1748 already emerged. Because the Court's
decision vindicates Phillips' right to free exercise, it seems that religious liberty has lived to
fight another day. But, in future cases, the freedom of speech could be essential to
preventing Obergefell from being used to "stamp out every vestige of dissent" and "vilify
Americans who are unwilling to assent to the new orthodoxy." Id., at ___, 135 S.Ct., at 2642
(ALITO, J., dissenting). If that freedom is to maintain its vitality, reasoning like the Colorado
Court of Appeals' must be rejected.
1748
Justice GINSBURG, with whom Justice SOTOMAYOR joins, dissenting.
There is much in the Court's opinion with which I agree. "[I]t is a general rule that [religious
and philosophical] 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." Ante, at 1727. "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." Ante, at 1727-1728. "[P]urveyors of goods and services who object
to gay marriages for moral and religious reasons [may not] put up signs saying `no goods or
services will be sold if they will be used for gay marriages.'" Ante, at 1728-1729. Gay persons
may be spared from "indignities when they seek goods and services in an open market."
Ante, at 1732.[1] I strongly disagree, however, with the Court's conclusion that Craig and
Mullins should lose this case. All of the above-quoted statements point in the opposite
direction.
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The Court concludes that "Phillips' religious objection was not considered with the neutrality
that the Free Exercise Clause requires." Ante, at 1731. This conclusion rests on evidence
said to show the Colorado Civil Rights Commission's *1749 (Commission) hostility to religion.
Hostility is discernible, the Court maintains, from the asserted "disparate consideration of
Phillips' case compared to the cases of" three other bakers who refused to make cakes
requested by William Jack, an amicus here. Ante, at 1732. The Court also finds hostility in
statements made at two public hearings on Phillips' appeal to the Commission. Ante, at
1728-1730. The different outcomes the Court features do not evidence hostility to religion of
the kind we have previously held to signal a free-exercise violation, nor do the comments by
one or two members of one of the four decisionmaking entities considering this case justify
reversing the judgment below.
1749
I
On March 13, 2014 — approximately three months after the ALJ ruled in favor of the same-
sex couple, Craig and Mullins, and two months before the Commission heard Phillips' appeal
from that decision — William Jack visited three Colorado bakeries. His visits followed a
similar pattern. He requested two cakes
"made to resemble an open Bible. He also requested that each cake be
decorated with Biblical verses. [He] requested that one of the cakes include
an image of two groomsmen, holding hands, with a red `X' over the image. On
one cake, he requested [on] one side[,] ... `God hates sin. Psalm 45:7' and on
the opposite side of the cake `Homosexuality is a detestable sin. Leviticus
18:2.' On the second cake, [the one] with the image of the two groomsmen
covered by a red `X' [Jack] requested [these words]: `God loves sinners' and
on the other side `While we were yet sinners Christ died for us. Romans 5:8.'"
App. to Pet. for Cert. 319a; see id., at 300a, 310a.
In contrast to Jack, Craig and Mullins simply requested a wedding cake: They mentioned no
message or anything else distinguishing the cake they wanted to buy from any other wedding
cake Phillips would have sold.
One bakery told Jack it would make cakes in the shape of Bibles, but would not decorate
them with the requested messages; the owner told Jack her bakery "does not discriminate"
and "accept[s] all humans." Id., at 301a (internal quotation marks omitted). The second
bakery owner told Jack he "had done open Bibles and books many times and that they look
amazing," but declined to make the specific cakes Jack described because the baker
regarded the messages as "hateful." Id., at 310a (internal quotation marks omitted). The third
bakery, according to Jack, said it would bake the cakes, but would not include the requested
message. Id., at 319a.[2]
Jack filed charges against each bakery with the Colorado Civil Rights Division (Division). The
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Division found no probable cause to support Jack's claims of unequal treatment and denial of
goods or services based on his Christian religious beliefs. Id., at 297a, 307a, 316a. In this
regard, the Division observed that the bakeries regularly produced cakes and other baked
goods with Christian symbols and had denied other customer requests for designs
demeaning people whose dignity the Colorado Antidiscrimination Act (CADA) protects. See
id., at 305a, 314a, 324a. The Commission summarily affirmed the Division's no-probable-
cause finding. See id., at 326a-331a.
*1750 The Court concludes that "the Commission's consideration of Phillips' religious
objection did not accord with its treatment of [the other bakers'] objections." Ante, at 1730.
See also ante, at 1736-1737 (GORSUCH, J., concurring). But the cases the Court aligns are
hardly comparable. The bakers would have refused to make a cake with Jack's requested
message for any customer, regardless of his or her religion. And the bakers visited by Jack
would have sold him any baked goods they would have sold anyone else. The bakeries'
refusal to make Jack cakes of a kind they would not make for any customer scarcely
resembles Phillips' refusal to serve Craig and Mullins: Phillips would not sell to Craig and
Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold
to others. When a couple contacts a bakery for a wedding cake, the product they are seeking
is a cake celebrating their wedding — not a cake celebrating heterosexual weddings or
same-sex weddings — and that is the service Craig and Mullins were denied. Cf. ante, at
1735-1736, 1738-1739 (GORSUCH, J., concurring). Colorado, the Court does not gainsay,
prohibits precisely the discrimination Craig and Mullins encountered. See supra, at 1748.
Jack, on the other hand, suffered no service refusal on the basis of his religion or any other
protected characteristic. He was treated as any other customer would have been treated —
no better, no worse.[3]
1750
The fact that Phillips might sell other cakes and cookies to gay and lesbian customers[4] was
irrelevant to the issue Craig and Mullins' case presented. What matters is that Phillips would
not provide a good or service to a same-sex couple that he would provide to a heterosexual
couple. In contrast, the other bakeries' sale of other goods to Christian customers was
relevant: It shows that there were no goods the bakeries would sell to a non-Christian
customer that they would refuse to sell to a Christian customer. Cf. ante, at 1730.
Nor was the Colorado Court of Appeals' "difference in treatment of these two instances...
based on the government's own assessment of offensiveness." Ante, at 1731. Phillips
declined to make a cake he found offensive where the offensiveness of the product was
determined solely by the identity of the customer requesting it. The three other bakeries
declined to make cakes where their objection to the product was due to the demeaning
message the *1751 requested product would literally display. As the Court recognizes, a
refusal "to design a special cake with words or images... might be different from a refusal to
sell any cake at all." Ante, at 1723.[5] The Colorado Court of Appeals did not distinguish
Phillips and the other three bakeries based simply on its or the Division's finding that
messages in the cakes Jack requested were offensive while any message in a cake for Craig
1751
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and Mullins was not. The Colorado court distinguished the cases on the ground that Craig
and Mullins were denied service based on an aspect of their identity that the State chose to
grant vigorous protection from discrimination. See App. to Pet. for Cert. 20a, n. 8 ("The
Division found that the bakeries did not refuse [Jack's] request because of his creed, but
rather because of the offensive nature of the requested message.... [T]here was no evidence
that the bakeries based their decisions on [Jack's] religion... [whereas Phillips] discriminat[ed]
on the basis of sexual orientation."). I do not read the Court to suggest that the Colorado
Legislature's decision to include certain protected characteristics in CADA is an impermissible
government prescription of what is and is not offensive. Cf. ante, at 1727-1728. To repeat,
the Court affirms 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." Ante, at 1728.
II
Statements made at the Commission's public hearings on Phillips' case provide no firmer
support for the Court's holding today. Whatever one may think of the statements in historical
context, I see no reason why the comments of one or two Commissioners should be taken to
overcome Phillips' refusal to sell a wedding cake to Craig and Mullins. The proceedings
involved several layers of independent decisionmaking, of which the Commission was but
one. See App. to Pet. for Cert. 5a-6a. First, the Division had to find probable cause that
Phillips violated CADA. Second, the ALJ entertained the parties' cross-motions for summary
judgment. Third, the Commission heard Phillips' appeal. Fourth, after the Commission's
ruling, the Colorado Court of Appeals considered the case de novo. What prejudice infected
the determinations of the adjudicators in the case before and after the Commission? The
Court does not say. Phillips' case is thus far removed from the only precedent upon which the
Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217,
124 L.Ed.2d 472 (1993), where the government action that *1752 violated a principle of
religious neutrality implicated a sole decisionmaking body, the city council, see id., at
526-528, 113 S.Ct. 2217.
1752
* * *
For the reasons stated, sensible application of CADA to a refusal to sell any wedding cake to
a gay couple should occasion affirmance of the Colorado Court of Appeals' judgment. I would
so rule.
[*] The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of
Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S.
321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
[*] Justice GORSUCH disagrees. In his view, the Jack cases and the Phillips case must be treated the
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same because the bakers in all those cases "would not sell the requested cakes to anyone." Post, at 1735.
That description perfectly fits the Jack cases — and explains why the bakers there did not engage in
unlawful discrimination. But it is a surprising characterization of the Phillips case, given that Phillips routinely
sells wedding cakes to opposite-sex couples. Justice GORSUCH can make the claim only because he
does not think a "wedding cake" is the relevant product. As Justice GORSUCH sees it, the product that
Phillips refused to sell here — and would refuse to sell to anyone — was a "cake celebrating same-sex
marriage." Ibid.; see post, at 1735, 1736-1737, 1737-1738. But that is wrong. The cake requested was not
a special "cake celebrating same-sex marriage." It was simply a wedding cake — one that (like other
standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike. See ante, at
1724-1725 (majority opinion) (recounting that Phillips did not so much as discuss the cake's design before
he refused to make it). And contrary to Justice GORSUCH's view, a wedding cake does not become
something different whenever a vendor like Phillips invests its sale to particular customers with "religious
significance." Post, at 1728. As this Court has long held, and reaffirms today, a vendor cannot escape a
public accommodations law because his religion disapproves selling a product to a group of customers,
whether defined by sexual orientation, race, sex, or other protected trait. See Newman v. Piggie Park
Enterprises, Inc., 390 U.S. 400, 402, n. 5, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam) (holding that
a barbeque vendor must serve black customers even if he perceives such service as vindicating racial
equality, in violation of his religious beliefs); ante, at 1727. A vendor can choose the products he sells, but
not the customers he serves — no matter the reason. Phillips sells wedding cakes. As to that product, he
unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis — which
has nothing to do with Phillips' religious beliefs — Colorado could have distinguished Phillips from the
bakers in the Jack cases, who did not engage in any prohibited discrimination.
[1] Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); Texas v.
Johnson, 491 U.S. 397, 405-406, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); Spence v. Washington, 418
U.S. 405, 406, 409-411, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam); Schacht v. United States, 398
U.S. 58, 62-63, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970); Tinker v. Des Moines Independent Community
School Dist., 393 U.S. 503, 505-506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Brown v. Louisiana, 383 U.S.
131, 141-142, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (opinion of Fortas, J.); West Virginia Bd. of Ed. v.
Barnette, 319 U.S. 624, 633-634, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Stromberg v. California, 283 U.S.
359, 361, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).
[2] The Colorado Court of Appeals acknowledged that "a wedding cake, in some circumstances, may
convey a particularized message celebrating same-sex marriage," depending on its "design" and whether it
has "written inscriptions." Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 288 (2015). But a wedding
cake needs no particular design or written words to communicate the basic message that a wedding is
occurring, a marriage has begun, and the couple should be celebrated. Wedding cakes have long varied in
color, decorations, and style, but those differences do not prevent people from recognizing wedding cakes
as wedding cakes. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93,
96 (1987). And regardless, the Commission's order does not distinguish between plain wedding cakes and
wedding cakes with particular designs or inscriptions; it requires Phillips to make any wedding cake for a
same-sex wedding that he would make for an opposite-sex wedding.
[3] The dissent faults Phillips for not "submitting... evidence" that wedding cakes communicate a message.
Post, at 1748, n. 1 (opinion of GINSBURG, J.). But this requirement finds no support in our precedents. This
Court did not insist that the parties submit evidence detailing the expressive nature of parades, flags, or
nude dancing. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S.
557, 568-570, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995); Spence, 418 U.S., at 410-411, 94 S.Ct. 2727;
Barnes, 501 U.S., at 565-566, 111 S.Ct. 2456. And we do not need extensive evidence here to conclude
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that Phillips' artistry is expressive, see Hurley, 515 U.S., at 569, 115 S.Ct. 2338, or that wedding cakes at
least communicate the basic fact that "this is a wedding," see id., at 573-575, 115 S.Ct. 2338. Nor does it
matter that the couple also communicates a message through the cake. More than one person can be
engaged in protected speech at the same time. See id., at 569-570, 115 S.Ct. 2338. And by forcing him to
provide the cake, Colorado is requiring Phillips to be "intimately connected" with the couple's speech, which
is enough to implicate his First Amendment rights. See id., at 576, 115 S.Ct. 2338.
[4] "[A] government regulation [of expressive conduct] is sufficiently justified if it is within the constitutional
power of the Government; if it furthers an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v.
O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
[1] As Justice THOMAS observes, the Court does not hold that wedding cakes are speech or expression
entitled to First Amendment protection. See ante, at 1740 (opinion concurring in part and concurring in
judgment). Nor could it, consistent with our First Amendment precedents. Justice THOMAS acknowledges
that for conduct to constitute protected expression, the conduct must be reasonably understood by an
observer to be communicative. Ante, at 1724-1725 (citing Clark v. Community for Creative Non-Violence,
468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). The record in this case is replete with Jack
Phillips' own views on the messages he believes his cakes convey. See ante, at 1742-1743 (THOMAS, J.,
concurring in part and concurring in judgment) (describing how Phillips "considers" and "sees" his work).
But Phillips submitted no evidence showing that an objective observer understands a wedding cake to
convey a message, much less that the observer understands the message to be the baker's, rather than the
marrying couple's. Indeed, some in the wedding industry could not explain what message, or whose, a
wedding cake conveys. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man
93, 100-101 (1987) (no explanation of wedding cakes' symbolism was forthcoming "even amongst those
who might be expected to be the experts"); id., at 104-105 (the cake cutting tradition might signify "the bride
and groom ... as appropriating the cake" from the bride's parents). And Phillips points to no case in which
this Court has suggested the provision of a baked good might be expressive conduct. Cf. ante, at 1743, n. 2
(THOMAS, J., concurring in part and concurring in judgment); Hurley v. Irish-American Gay, Lesbian, and
Bisexual Group of Boston, Inc., 515 U.S. 557, 568-579, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (citing
previous cases recognizing parades to be expressive); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565,
111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (noting precedents suggesting nude dancing is expressive
conduct); Spence v. Washington, 418 U.S. 405, 410, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (observing the
Court's decades-long recognition of the symbolism of flags).
[2] The record provides no ideological explanation for the bakeries' refusals. Cf. ante, at 1734-1735, 1738,
1739-1740 (GORSUCH, J., concurring) (describing Jack's requests as offensive to the bakers' "secular"
convictions).
[3] Justice GORSUCH argues that the situations "share all legally salient features." Ante, at 1735
(concurring opinion). But what critically differentiates them is the role the customer's "statutorily protected
trait," ibid., played in the denial of service. Change Craig and Mullins' sexual orientation (or sex), and Phillips
would have provided the cake. Change Jack's religion, and the bakers would have been no more willing to
comply with his request. The bakers' objections to Jack's cakes had nothing to do with "religious opposition
to same-sex weddings." Ante, at 1736 (GORSUCH, J., concurring). Instead, the bakers simply refused to
make cakes bearing statements demeaning to people protected by CADA. With respect to Jack's second
cake, in particular, where he requested an image of two groomsmen covered by a red "X" and the lines
"God loves sinners" and "While we were yet sinners Christ died for us," the bakers gave not the slightest
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indication that religious words, rather than the demeaning image, prompted the objection. See supra, at
1749. Phillips did, therefore, discriminate because of sexual orientation; the other bakers did not
discriminate because of religious belief; and the Commission properly found discrimination in one case but
not the other. Cf. ante, at 1735-1737 (GORSUCH, J., concurring).
[4] But see ante, at 1726 (majority opinion) (acknowledging that Phillips refused to sell to a lesbian couple
cupcakes for a celebration of their union).
[5] The Court undermines this observation when later asserting that the treatment of Phillips, as compared
with the treatment of the other three bakeries, "could reasonably be interpreted as being inconsistent as to
the question of whether speech is involved." Ante, at 1730. But recall that, while Jack requested cakes with
particular text inscribed, Craig and Mullins were refused the sale of any wedding cake at all. They were
turned away before any specific cake design could be discussed. (It appears that Phillips rarely, if ever,
produces wedding cakes with words on them — or at least does not advertise such cakes. See
Masterpiece Cakeshop, Wedding, http://www.masterpiececakes.com/wedding-cakes (as last visited June
1, 2018) (gallery with 31 wedding cake images, none of which exhibits words).) The Division and the Court
of Appeals could rationally and lawfully distinguish between a case involving disparaging text and images
and a case involving a wedding cake of unspecified design. The distinction is not between a cake with text
and one without, see ante, at 1737-1738 (GORSUCH, J., concurring); it is between a cake with a particular
design and one whose form was never even discussed.
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