Supreme Court Kicks the Cake Down the Road on Free Exercise Decision for Business Owners

In another decision tangentially related to employers or business owners, the Supreme Court decided for the individual business owner in a case where the First Amendment and states’ Human Rights statutes squared off over a wedding cake.


The dispute in Masterpiece Cake Shop, Ltd. v. Colorado Civil Rights Commission arose from a same-sex Colorado couple who were planning on getting married in Massachusetts in 2012 and having a post-wedding celebration in Colorado.  They entered the defendant’s place of business, Masterpiece Cakeshop, and requested a wedding cake for “their wedding.”  The business owner, a “devout” Christian, refused to serve them, based on his religious beliefs as well as his understanding that same-sex marriage was illegal.

The couple filed a complaint with the Colorado Civil Rights division, and the case proceeded to the U.S. Supreme Court, despite the Colorado Supreme Court’s refusal to hear the case.  The couple filed the complaint based on Colorado’s broad Antidiscrimination Act Language, which states:

“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.”

Phillips, the business owner, defended himself by stating he could not be forced to create something that would run contrary to the teachings of his religion, and for the state to do so would violate the Free Exercise Clause.

The Supreme Court had the opportunity to resolve a very difficult issue: could a business be forced to perform work with which it had a sincerely held religious belief against in effort to enforce strong anti-discrimination statutes?

There were hopes that the Court would go through the balancing process of the individual business owner’s rights versus the interests of the state.  In fact, the Court actually stated 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.”  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 504 U.S. ____(2018). 

However, instead of making a ruling that could have cleared up the issue for small business owners across the country, the Court punted on making an actual decision on the weighing of interests, and instead overturned the ruling against the business owner due to the complete impartiality of the Colorado Civil Rights Commission during the initial hearings on the matter.  This forced the court to use a higher level of scrutiny when addressing the Constitutionality of the decision, and allowed them to avoid the question.

Business owners might view this as a win for them and their individual rights and beliefs.  But as earlier decisions show, if a law such as the Colorado Antidiscrimination Act is neutral and generally applicable to the public, it “will usually survive a Constitutional Free Exercise challenge.”   Id. at 1 (Gorsuch, J., concurring, citing Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 878–879 (1990)).

Because of this, individual business owners need to be very careful when rejecting possible customers due to differing religious beliefs.  This includes the state of Minnesota, where we have a very similar statutory language pertaining to public accommodation:

It is an unfair discriminatory practice:

(1) to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin, marital status, sexual orientation, or sex…

Minn. Stat. §363A.11, subd. 1.

The Supreme Court has already found the Minnesota Human Rights Act to be neither overbroad nor vague in regard to the freedom of association and the freedom of expression in Roberts v. United States Jaycees, 468 U.S. 609 (1984).  This means that human rights departments across the state have a sound basis for imposing sanctions against businesses who deny services to people on the basis of protected class status.  Once businesses cross the line from religious to secular, they open themselves up to the restrictions of broad anti-discrimination laws put in place to protect all citizens of the state.