The Supreme Court temporized on Monday on a major question of LGBT civil rights - specifically, whether a state can require a wedding-cake baker to sell his products to same-sex couples as he does to heterosexual couples. Avoiding a sweeping decision, the justices nevertheless laid the foundations for a more ambitious ruling in the future.
Businesses cannot pick and choose their customers based on race. States should be able to extend that simple fairness to LGBT people, too. The court on Monday came closer to saying so.
By a 7-to-2 vote, the justices found that the state of Colorado, which has a strong anti-discrimination law forbidding businesses from discriminating against customers based on sexual orientation, impermissibly violated a cake baker’s religious freedoms by sanctioning him after he refused to sell a wedding cake to a same-sex couple of the same sort the baker routinely made for heterosexual couples. When the couple complained, the Colorado Civil Rights Commission referred the case to a judge, who agreed with the couple.
The case could have tested how far states can go in requiring fairness for LGBT people in the public marketplace. But the majority opinion dodged the question, instead condemning the state’s Civil Rights Commission for improper reasoning in applying Colorado’s anti-discrimination law. The government “cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices,” Justice Anthony Kennedy wrote for the majority. In considering the baker’s case, the commission “was neither tolerant nor respectful of [baker Jack] Phillips’ religious beliefs.”
The court cited statements that commissioners made that appeared to disparage the baker’s religious views and suggest that they were insincere.
It also pointed out that the commission embraced the notion that bakers could decline to create cakes with anti-LGBT messages because they are offensive, but that the baker who refused to bake a cake for a same-sex couple could not refuse on the grounds that doing so would be offensive to him.
Yet even as Kennedy insisted that the law “must be applied in a manner that treats religion with neutral respect,” he also indicated that Colorado’s law itself was valid: “Colorado law can protect gay persons . . . in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” In doing so, he wrote, the state could have legitimate reasons to forgive bakers who refuse to bake anti-LGBT cakes and punish those who refuse to bake a wedding cake for same-sex couples.
As Justice Elena Kagan noted in a concurring opinion, cake bakers can be required to bake the same sorts of cakes they make for all other couples but might not be required to bake special ones with specific messaging.
Finally, Kennedy warned that the court could not, in the future, rule expansively in favor of a baker’s religious claims, “lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in 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.”
It might take more time, but the court is heading in the right direction.