An Unexpectedly Small Piece of Cake Commentary
An Unexpectedly Small Piece of Cake
Edited by: Patrick Sherry

One of the year’s most-watched Supreme Court controversies, Masterpiece Cakeshop, Limited v. Colorado Civil Rights Commission [No. 16-111], was never likely to deliver the full faceoff between Religious Free Exercise and Anti-Discrimination Rights that many people expected.  As I’ll explain more fully below, cake baker Jack Phillip’s claim to avoid administrative sanctions despite refusing on religious grounds to sell a specialty cake to a couple celebrating their same-sex union depended upon a boutique Free Speech theory not likely to be generally usable by the nation’s businesses.

But Masterpiece Cakeshopalways contained an even narrower option for a ruling; a 7-2 majority of the Supreme Court took this route when it handed down a limited win for the baker on June 4, 2018. The result was a modest reaffirmation of recent Court rulings red-lighting governmental-agency discrimination against religious believers.  The decision generally left for another day the question still resonating in political, social and legal circles – whether and to what extent sincerely held religious beliefs can overcome the rights of others to be treated with equal dignity.

Among the many interesting dimensions of Masterpiece Cakeshop, I’ll focus on three.  First, the case provides a particularly high-profile example of how the legal issues actually argued to the Court can depart sharply from what many Americans understand the legal issues to be from media coverage and general conversation.  Second, Masterpiece Cake Shop likely suggests how, by the time constitutional issues are subjected to full briefing and oral argument, they may look very different (and much more troublesome) than they did when initial certiorari review was granted; as a result, the justices may come to see that discretion is the better part of valor.  Third, the recent decision provides the second prominent example in two years of how justice alignments on religious-freedom cases don’t cleave along strictly ideological lines.

The Gap between Legal Issues Anticipated and Actually Argued

Masterpiece Cakeshop was never a likely vehicle for broadly resolving the fight between religious scruples and same-sex-marriage equality.  From the opening pages of their briefs, both Petitioner Phillips and the Trump Administration (as a “friend of the Court”) emphasized that the baker was a “cake artist” whose one-of-a-kind specialty cakes were akin to personally created art works.  Thus, compelling Phillips to design a cake for a same-sex couple despite his religious scruples — or suffer administrative sanctions for dishonoring Colorado laws forbidding discrimination on prohibited bases (including sexual orientation) – arguably forced Phillips to (as his main brief put it) “convey ideas [he] deem[s] objectionable” in violation of First Amendment rights against “compelled speech.”

Normally an infrequently litigated Free Speech byway, the compelled-speech doctrine figures in no fewer than three cases on the Supreme Court’s docket this Term.  (In addition to Masterpiece Cakeshop, compelled speech arguments were prominent in Janus v. AFSCME [No. 16-1466; argued February 26, 2018], which disputed laws requiring objecting members of public-employee unions to pay “agency fees” to support some union representation activities, and National Institute of Family & Life Advocatesv. Becerra [No. 16-1140; argued March 20, 2018], which considered a California law requiring pregnancy-consultation services to make disclosures to their patients.)

But as interesting as compelled speech was for the justices this Term, the doctrinal rubric meant that a ruling for Phillips should not have automatically meant an across-the-board right of businesses to refuse to trade with LBGTQ customers.  Justice Kennedy’s majority opinion in Masterpiece Cakeshop suggested as much, by noting that “it 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.”

Phillips’ argument was that custom cakes “necessarily express ideas about marriage and the couple, and as a result, they are entitled to full constitutional protection.”  The list of providers of goods and services who can plausibly claim to “express ideas” through their business transactions is a limited subcategory.  To take the wedding context, maybe florists, caterers and hairdressers can – but seemingly not the hotel that rents the hall, the limousine service delivering guests, etc.

Note, please, that I’m in no way denying that a win for Phillips on speech grounds could have been a noteworthy (and disturbing) opening wedge in a continuing drive to, as Colorado’s brief put it, “severely undermine anti-discrimination laws.”  My more limited point is that it would have taken some major judicial huffing and puffing to inflate Masterpiece Cakeshop into a general Religion vs. Anti-discrimination square off.

Seeing that Less is More

Of course, the Court didn’t end up deciding Masterpiece Cakeshop on the more limited compelled-speech ground anyway.  Instead, seven justices relied on intemperate remarks made by members of the Colorado Civil Rights Commission and the Commission’s seemingly contradictory handling of several cases involving bakers to hold that the Commission had expressed unconstitutional “hostility” to Phillips’ religious beliefs.  By relying on facts peculiar to one state’s administrative proceedings as the basis for ruling for the baker, the Court further marginalized the precedential value of its holding.

Just last Term, in Trinity Lutheran Church v. Comer [137 S.Ct. 2012 (2017)], the Justices built on a 1993 precedent invalidating a Florida city’s ordinance against “animal sacrifices.” [Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)]  The Trinity Lutheran ruling struck down Missouri’s refusal to give an otherwise-qualified school a playground-upgrade grant because the school was a religious day school.  Trinity Lutheran emphasized that government violates the Constitution when it “expressly discriminates” against an individual or entity “solely because” of the “religious character” of their activities.

Through the Trinity Lutheran lens, seven Masterpiece Cakeshop justices saw unconstitutional anti-religious hostility in 1) disparaging statements from a Colorado Civil Rights Commissioner about Phillips’ views (example: associating Phillips’ religious views with “despicable” religious “rhetoric” used “to justify all kinds of discrimination” throughout history, including slavery and the Holocaust) and 2) the Commission’s failure to let Phillips refuse to provide his cake while allowing other bakers to decline to bake cakes that would have “convey[ed] disapproval or same-sex marriage.”

Thus, Masterpiece Cakeshop ended up modestly confirming the evolving “anti-religious-discrimination” principle by applying it to yet another context.  In so doing, the justices avoided dealing with a number of difficult questions posed by a ruling for the baker on Free Speech grounds.  Key uncomfortable questions would have included the following:  What kind of signal, if any, should the Court send about the dividing line between the creative artist and the more work-a-day goods-and-services provider?  And, what if such an artist refuses to trade with women, Jews or African-Americans on alleged religious grounds?

Because the deliberations of the justices on the way to and after oral argument are confidential, I can’t prove that the justices were motivated by avoiding questions that likely grew in vexatiousness as the briefs piled up and the bench memos circulated.  Still, it seems a good bet that as the litigation progressed, the appeal of the discretion-equals-valor maxim grew.

A Non-ideological Free Exercise Coalition

Given its relatively limited reach, Masterpiece Cakeshopmay be more interesting in confirming the present Court’s less-than-ideologically pure approach to questions of religious Free Exercise.

The vote alignment in Masterpiece Cakeshop mirrored the vote alignment in the Trinity Lutheran case.  In both decisions, two justices generally associated with the “liberal” side of civil-liberties cases (Justices Breyer and Kagan) joined their five “conservative/moderate” brethren in voting to uphold Free Exercise rights against perceived discrimination based on religious status.  This put Breyer and Kagan at odds with their normal compatriots in other individual-rights cases, Justices Ginsburg and Sotomayor.

True, as in Trinity Lutheran, some of the justices agreeing on the Masterpiece Cakeshop outcome used concurring opinions to skirmish over secondary points.

Still, Masterpiece Cakeshop underlines a point that can get lost amid the tendency of some media sources and public commentators to reduce Supreme Court decision making to just politics: Often a host of other factors (including legal precedents and the group dynamics playing out as the justices strive to coalesce around a majority position) are at work.

Professor Glenn C. Smith teaches constitutional law at California Western School of Law in San Diego.  He is the principal co-author of Constitutional Law for Dummies[John Wiley & Sons, Inc. 2012].  His monthly five-minute CONSTITUTIONAL CONTEXT audio podcasts, hosted on the San Diego State University’s Osher Lifelong Learning Institute website, are now available on YouTube™ and for subscription from ITunesand other major podcast providers.

Suggested citation: Glenn C. Smith, An Unexpectedly Small Piece of Cake, JURIST – Academic Commentary, Jun. 20, 2018,

This article was prepared for publication by Patrick Sherry, an Associate Editor for JURIST Commentary. Please direct any questions or comments to him at

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